Phillip A. Zampino and his Rebuttal and Appeal of:

ECAB DOCKET NUMBER: 2002-1145

Employees` Compensation Appeals Board

1. 02-1145: PHILLIP A. ZAMPINO and U.S. POSTAL SERVI...

DEPARTMENT OF LABOR. Employees' Compensation Appeals Board. In the Matter of PHILLIP A. ZAMPINO and U.S. POSTAL SERVICE, POST OFFICE, Canton, OH. Docket No. 02-1145; Submitted on the Record; Issued January 28, 2004. DECISION and ORDER ... owner of the shop was listed as appellant's wife, Diane Zampino. In a CA-1032 form signed on ...www.dol.gov/ecab/cases/2004/Jan/02-1145.htm -

I Want You To Be My Judge and Jury

I want you to be my Judge and Jury

regarding a case I was involved in

with the U.S. Government.

After you read my attached Appeal concerning my

USDOL/ECAB/BHR/OWCP/POST OFFICE case,

I want you to read the U.S. Governments

twisted reasoning in this case.

ECAB DOCKET NUMBER: 2002-1145

Employees` Compensation Appeals Board

02-1145: PHILLIP A. ZAMPINO and U.S. POSTAL SERVI...

I would like to hear your opinions and conclusions.

www.PAZPublishing.sbcglobal.com

Keep in mind this type of case is never heard

by a Federal Judge or Jury of peers.

A government agency who may directly or indirectly

work in conjunction with another government agency is how decisions are made.

Government Agency Number 1

Here`s how the system works. The employing government agency usually passes on to Worker`s Compensation twisted and confusing information if they decide to attack an individual, for whatever reason or made up theory they choose. OWCP will then initiate an investigation. OWCP is called the OFFICE.

Government Agency Number 2

The decisions are rendered by this government agency (called the OFFICE).

Government Agency Number 3

If the Claimant appeals the Offices decision the case file and decisions are passed on to another government agency (called the BOARD OF HEARING AND REVIEW).

Government Agency Number 4

If the Claimant appeals the decision made by the Board of Hearing and Review the case file and decisions are passed on to another government agency (called ECAB (Employees` Compensation Appeal Board).

Again, Please keep in mind this type of case is NEVER heard

by a Federal Judge or Jury of peers.

Decisions are made by government agency after government agency

who may directly or indirectly work in conjunction with

the other government agencies that render the decisions.

I have been involved in local government.

My experience and belief is that when one government

agency feeds into another government agency,

which requires an appealed decision,

they usually always support each other`s decisions.

Quite honestly I believe they are expected

to support each other`s decisions.

At the very least,

I believe this method of rendering decisions is not due process.

Nor do I believe it is a fair way to render decisions.

In my opinion, this type of process means

that we have a government inside the government.

Most people, like you and me do not understand the government options whether it is because you are forced out on disability retirement due to an injury or any other issue. Believe me when I say, this entire process could have been avoided if someone from one of the government agencies involved would have explained to me my options. Thousands of tax dollars could have been saved.

How do we hold an individual accountable for being grossly negligent or over zealous in their job when employed by the government? We can`t! They are exempt as well as the government from being sued. Another government benefited decision because another branch of our government passed that law.

I truly believe one individual in the government, was given orders to do whatever it took to get me off Worker`s Compensation. Because my medical case was so very strong and the government could not even change the minds of their own doctors regarding the severeness of my back injury, and my ability to continue doing my government job, I believe the government chose to create a bogus theory based upon me not reporting income. You will see below that I gave all the information required and more. You will see, I asked for advice and I asked many questions, but never once received a response to my really important questions that could have eliminated this case. Therefore, the grossly negligent employees involved in my case are not held accountable.

It took the Post Office nearly 10 years to come up with a theory on how to remove me from worker`s compensation. I believe their objective was to make sure I pled guilty to making a false statement so that, under a new law, which was passed during our negotiations, and, unbeknown to my attorney and me that would guarantee them that I could never receive worker`s compensation again.

Ask yourself, Could I (you) endure a 10 year investigation that would rip my (your) family apart? Wouldn`t you, no matter what, try to do something, anything to end it, in order to especially protect your children? That`s what I did!

I would like to hear your opinions and conclusions.

www.PAZPublishing.sbcglobal.com

Now sit back and read this unbelievable story.

It should be made into a movie. Yes, a comedy!

UNITED STATES DEPARTMENT OF LABOR

Employee`s Compensation Appeal Board

200 Constitution Ave. N.W., Room N-2609

Washington, D.C. 20210

RE: THE MATTER OF: OWCP CLAIM NO. 090-130317

PHILLIP A. ZAMPINO, Claimant-Applicant

ECAB DOCKET NUMBER: 2002-1145

CLAIMANT`S APPLICATION FOR REVIEW (65 pages) (86 PAGES TOTAL)

_______________________________

Phillip A. Zampino, Claimant-Applicant

Mailing/Residence Address: 2415 Bevington St. NW Canton, Ohio 44709

Home and Fax Phone Numbers: 330-493-6661

Employed by: U.S. POSTAL SERVICE, Akron/Canton, Ohio

Nature of injury: Multifaceted chronic back condition resulting later into

Post Traumatic Fibromyalgia

Date of injury: 4-26-72

Date of injury recurrence: 4-26-76

Place of injury: Canton, Ohio

Date of departure/retirement from Postal Service: 3-4-77

CSA Number: 1-962 574

Claimant, Phillip A. Zampino (hereinafter Claimant)

respectfully appeals the following decisions:

I.

The Office`s March 23, 1992 determinations of

Overpayment of $221,528.33 from 1/15/77 through 5/7/90

II.

The BHR June 21, 2001 determination

that the overpayment March 23, 1992 in the amount

of $221.528.33 be reduced to $143,570.31

covering the following time periods:

Forfeitures dated July 2, 1980, April 4, 1983,

June 8, 1985, August 23, 1985, October 15, 1985, January 2, 1986,

October 20, 1986, October 7, 1987, October 20, 1988,

September 15, 1989, May 11, 1990

III.

The Office`s January 30, 2002 determination

denying the Claimant any relief relative to the

Reconsideration filed by the Claimant, with the Office on November 13, 2001

in regards to the June 21, 2001 decision of BHR

Claimant submits the attached brief with Claimant`s case file, which is in the hands of OWCP, and in the record, in support of this application for review.

This application has been prepared and is filed by the undersigned.

PHILLIP A. ZAMPINO, CLAIMANT

2415 Bevington St. NW

Canton, Ohio 44709-2221

VOICE or FAX: (330) 493-6661

*** In a separate decision by OWCP, the ISSUE Termination of the Claimant`s Benefits is in a separate brief contained herein and is hereby requested to be reviewed by ECAB with the above issues.

ARGUMENTS

INTRODUCTION

The Claimant sincerely apologizes in advance for the length of this brief. The amount of information submitted is necessary due to the MASSIVE amount of information, evidence and facts in this case covering a 30-year period. Because a great deal of information has been mis-stated, overlooked, duplicated or incorrectly reported by the USPS to the Office, which has filtered down through the decisions of the Office and BHR, it is critical that the Claimant mention and quote to the ECAB facts and evidence in the record which present a more accurate picture of this case.

Also, the correspondence between the Claimant (particularly his former attorney) and the Office (particularly the Branch of Hearings and Review) is extremely important to this case not only with respect to an alleged overpayment, but with regard to the other matters to have been decided in error. Rather than reiterate many arguments raised and submitted into the record, the Claimant respectfully incorporates herein by this reference all such correspondence, attachments, exhibits ESPECIALLY:

1. Exhibit 1 submitted to BHR at the January 31, 2001 hearing in Cleveland, Ohio
2. Exhibit 2 which was submitted to BHR on February 12, 2001 OWCP-20 form with attachments
3. The Claimant`s filing of a Reconsideration with the Office on October 5, 2001 but recorded by the Office as November 13, 2001)

And, all pleadings (all of which should be in the record since it has all been submitted to the Office and/or BHR) and strongly urges the ECAB to read all such correspondence, especially any reference marked in BOLD PRINT, highlighted, in red print or words underlined.

In other words, the facts and evidence currently in the record as described herein and supported by such correspondence and the relevant arguments seriously depend on a thorough reading of the record.

The Claimant requests the ECAB to consider

the following arguments in this case:

1. The USPS August 6, 1991 report

should be stricken from the record.

The ECAB should seriously consider the credibility of the USPS report, which has been the primary instrument of all the so-called evidence that has determined the Claimant`s overpayment.

2. A Comprehensive Agreement had been

reached by the Claimant and his Attorney

with the USPS and the U.S. Attorney`s Office.

The Office and BHR ignored the comprehensive agreement, which included that the amount of debt owed would be between $5,000 and $10,000 if the Claimant`s appeal process failed.

3. The June 21, 2001 decision by BHR ignores

Exculpatory facts and evidence concerning

the overpayment periods indicated by the

hearing representative.

Numerous affidavits, documents, statements, explanations, special circumstances, arguments and letters have been ignored by the Office and BHR, which are in the Claimant`s case file.

---

4. The January 30, 2002 determination by the

Office ignores exculpatory facts and an abundance

of NEW Evidence concerning the 1985 overpayment

period and abused their discretion by refusing

to waive the Claimant`s overpayment by not

calculating Equity and Good Conscience properly.

Additional receipts and documents were submitted to the Office pertaining to the issues mentioned above. The Office`s rationale and reasoning for denying the Claimant any Reconsideration on the issues mentioned above has confused this case even further. Most importantly, ECAB must notice that the Office mistakenly calculated the Claimant`s gross income as net income. Consequently, the Claimant`s eligibility for Equity and Good Conscience was denied because the Office calculated his gross income as net income.

(1)

The August 6, 1991 report by the USPIS should be

discarded and stricken from the record along with

the June 21, 2001, decision of

Hearing Representative Rachel Leiton

IMPORTANT: The ECAB should seriously consider and challenge the credibility of the USPS report of August 6, 1991, which is the primary instrument of all the so-called evidence that has determined the Claimant`s overpayment.

IMPORTANT: Because the Office used and has referred ONLY to the August 6, 1991 documentation in supporting their position regarding the overpayment during the Claimant`s appeals with the Office and BHR, those decisions of the Office and BHR, too, should be stricken from the record.

IMPORTANT: The Office finalized this case on 3/23/92, which is less than 30 days from the preliminary decision of the Office of 2/28/92. Procedurally this case has been mishandled from day one and should be dismissed.

IMPORTANT: The Office finalized this case on 3/23/92. The OWCP is barred by the six-year period of limitations of 28 U.S.C. Section 2415 and 31 U.S.C. 3731 (b). from recovering an overpayment of compensation made more than six years before the Office determined there was an overpayment. Therefore, all periods prior to 3/23/86 should be void and not relevant to this case.

IMPORTANT: The 2/28/92 decision of the Office, in this case, is now past the 10-year statute of limitations for collecting an overpayment debt. FECA Manual Debt Management Part 6 (8h) states:

h. A statutory limitation of 10 years exists for the initiation of any offset effort.Specifically, the OWCP may not initiate salary offset to collect a debt more than 10 years after the right to collect the debt first accrued,...

It is now beyond 10 years and the Office has not legally been permitted to initiate any collection due to the Claimant`s entitlement to receive Due Process. Most importantly, OWCP`s four and one-half years of lapsed time (1996-2000) in doing nothing to resolve this case is unreasonable and negligent. Therefore, this case should be dismissed.

In this case, Federal Magistrate Judge David S. Perelman, in his ruling and order dated November 8, 1991, determined that the USPS was on a witch hunt and fishing expedition, a mission to terminate the Claimant`s benefits, and they should not be supported in doing so by this federal court.

In this case, USDOL/OWCP sometimes Acting Director, Senior Claims Examiner David T. Woods, in a letter to the USPS dated September 20, 1989, stated: you have no intention of reemploying Mr. Zampino and that you are merely seeking some way, any way to terminate Mr. Zampino`s compensation benefits.

All the so-called evidence by Inspector Douillette was finalized on August 6, 1991. Judge Perelman indicated in his November 8, 1991 ruling: Other than conclusory allegations by Inspector Douillette that Mr. Zampino is cheating the government, there is not a shred of evidence before this Court...

In a ten (10)-page affidavit by the Claimant`s former wife, Diane Zampino, dated December 7, 1992, she states many specific inaccuracies regarding Mr. Douillette`s written report regarding an interview with her on March 20, 1991. The rebutted (12/7/92) affidavit is important because the Office and BHR used the mis-stated testimony of Mr. Douillette`s March 20, 1991 interview, which was included in Mr. Douillette`s August 6, 1991 final report to OWCP, as a means of substantiating the Office`s position. However, no one from OWCP or BHR gave any probative value to the 12/7/92 affidavit.

In Scott Grewell`s (store manager at that time and current owner of the business) affidavit, dated December 1, 1992 he states the following on page 2 of his affidavit: During my interview with Mr. Douillette and Mr. Flowers on February 21, 1991 I gave them an example as to why Mr. Zampino`s picture was on envelopes etc. regarding advertising. I stated, Would you go to an automotive repair shop if you knew a woman owned it? We have a similar male image type business because of mostly drummers being male and prejudice towards females. I have read over Mr. Douillette`s report of my interview with him, and have noticed that statement was omitted from his report. Additionally in his report, several inaccurate statements and/or comments were made which are out of context compared to what I said or meant.

On page five (5) of an affidavit prepared by Donald Sauerbier, CPA, the family Certified Public Accountant, dated December 18, 1992, he states: In March of 1991 Mr. Douillette attempted to contact me at home on a Friday evening. I was not in at the time. He left a message on my home answering machine indicating he called regarding Phillip Zampino and that he would contact me the next week to arrange a time when we could meet. I never heard from him or received any request for information from him after he left the message that Friday evening. The Zampino`s gave me authority to provide Mr. Douillette with any information that he may require at any time.

Also, in the affidavit, Mr. Sauerbier provides in specific detail the FAMILY focus about the business, how Ohio Tax agencies and the IRS views a business owned by either the husband or wife, the unimportance of specific documents signed by a husband or wife and how the State of Ohio and IRS view it. Mr. Sauerbier explains how errors occurred because of the previous bookkeeper, prior to his passing away in 1988, and the corrections he made related to Social Security postings, vendor`s licenses etc., and why. Mr. Sauerbier specifically indicates that IRS did NOT even think they should issue a new Federal Tax I.D. number to Diane Zampino because of the family business.

There is an abundance of facts and evidence in Mr. Sauerbier`s affidavit, which explains the circumstances and confusion in this case. Most importantly he points out that the Claimant did NOT receive any income or financial benefit from the business. (EMPHASIS ON SAUERBIER`S 2 AFFIDAVITS)

There would have been no one better for Mr. Douillette to contact than the family accountant to find out the truth relative to the Claimant`s financial involvement in the family business. It is obvious that Mr. Douillette did not contact Mr. Sauerbier because Mr. Sauerbier would have provided evidence and facts to Mr. Douillette that would have had to be included in his August 6, 1991 report to OWCP.

One must conclude that Mr. Douillette realized that any information provided by Mr. Sauerbier would have, in all probability, very much weakened Mr. Douillette`s biased and tainted report and his ability to create an overpayment, LWEC, and/or terminate the Claimant`s benefits. This further proves that Mr. Douillette was not attempting to find the truth regarding the Claimant, but instead Douillette was attempting to incriminate the Claimant any way possible.

Contained in a Certified Copy of Transcripts, the Claimant spoke with Supervisor Gregory George on 3/23/92, from the Ohio Department of Taxation. Following is information pertaining to an alleged conversation between Inspector Douillette and Supervisor Gregory George. In Mr. Douillette`s August 6, 1991 report he states: I contacted the Ohio Department of Taxation on 2/26/91 and spoke with supervisor Gregory George. Mr. George told the Claimant on 3/23/92 that he would have remembered a name like Douillette and that he didn`t remember speaking with Mr. Douillette. He also states: I don’t know who this person was.... you say he contacted me. In Mr. Douillette`s August 6, 1991 report he made some absurd statements regarding his alleged conversation with Mr. George. The Claimant strongly urges the ECAB to read the certified copy of the 3/23/92 transcripts.

Mr. George clearly states in the certified copy of transcripts on his 3/23/92 conversation with the Claimant, that: if he called me for any reason, if he asked me something about your business or anybody`s business, we don`t give out information. That`s confidential. If he asked me what the license name was. I wouldn`t tell him that.

Most importantly, Mr. George substantiated in his conversation with the Claimant on 3/23/92, in the certified copy of the transcripts, the fact that the State of Ohio didn`t care whose name was on the license as it related to payment of Ohio Sales Tax. Mr. George stated, as long as the monthly Sales Tax was paid, that`s all they cared about.

In CPA Sauerbier`s affidavit and Supervisor George`s transcripts is an abundance of evidence and facts about the unimportance of sales tax applications and other tax documents of any business as it relates to a Family Owned Business by either the husband or wife.

Furthermore, Mr. Douillette, in his report, claims he had an alleged conversation with an important official from the Ohio Tax Department, when in fact he did NOT. Mr. Douillette, in his report, additionally makes it sound as if his discovery of tax information is important when in fact it is NOT.

If Mr. Douillette would have sought the truth about this information with CPA Sauerbier he would have learned of it`s unimportance and would have learned that the only important tax document related to this case MAY be the Federal Income Tax Return Schedule C and SE which affects the correct posting of Social Security earnings which in this case reflect only the profits of the business and not the actual earnings of the Claimant or his former wife. Prior to any known investigation by the Claimant and his former wife, the Claimant and his wife advised the former bookkeeper around 1977-78, when the Claimant`s former wife`s father passed away, leaving her a sizeable inheritance, that Diane Zampino would be considered the legal owner due to her investing her inheritance into the business. Unfortunately for the Claimant, he relied solely on the bookkeeper, who unfortunately passed away in 1988, to make all the necessary and proper changes by law, which would be required. In 1979, 1980 and 1985 he, or one of his employees, made an error by listing the Claimant`s social security number on the schedule C of the income tax return. However, the 1985 error was discovered when the new CPA received all the tax returns that the Claimant and his wife had. They no longer had the 1979 and 1980 tax returns.

This error was discovered in 1989 by the new CPA, Mr. Sauerbier, when he discovered Diane Zampino`s name as the owner on the 1985 schedule C and SE and the former bookkeeper mistakenly used the Claimant`s social security number instead of the Claimant`s wife.

When Mr. Sauerbier, CPA, took over the accounting of the Zampino Family he requested previous tax returns. Tax returns from about 1983 to 1988 were supplied to Mr. Sauerbier. He noticed the error in 1985 and submitted the paperwork for correction with social security. This was pointed out when the Claimant filed Reconsideration and substantiated this fact by submitting evidence of the Claimant`s Social Security Report. The Office ignored the Social Security document. Furthermore, this proves that the previous bookkeeper did error at times. The tax returns for 1979-1980 were no longer available to know that there was an error. In the year`s 1977-78-81-82-83-84-(corrected 85)-86-87-88-89-90, the profits of the business were reflected to be Diane Zampino`s and posted to her social security number on the annual tax returns.

The June 21, 2001 decision of Hearing Representative Ms. Rachel Leiton lists the following information to substantiate her position as to why the Office determined an overpayment against the Claimant in this case.

In August of 1991, the Postal Service forwarded to the Office a copy of an Investigative Memorandum with Exhibits, signed by A.E. Douillette. In the Memorandum, Mr. Douillette alleged that Mr. Zampino had failed to report earnings from a private company that he had owned since he had been in receipt of compensation. The Exhibits included the following documents: 1990 tax return showing Phillip and Diane Zampino as owners of Zampino`s Drum Shop; a March 20, 1991 transcript of an interview with Diane Zampino, the claimant`s wife; a June 18, 1991 transcript of an interview with the claimant; Social Security Administration records for the period from 1972 through 1977; evidence that the investigator had reviewed checks from the Shop, 99% of which were signed by the claimant from 1988 through 1989; bank signature cards for the business signed by both Mr. and Mrs. Zampino on February 21, 1990; January 31, 1988 bank statement for the drum shop; copy of an April 18, 1975 vendor`s license to the claimant for sales and teaching; application for vendor`s license signed by the claimant as sole owner on April 18, 1975; August 10, 1990 application for vendor`s license to make sales, wife as sole owner beginning October 1, 1990; February 21, 1991 business questionnaire from BBB Canton, Ohio, claimant listed as owner of Zampino`s Drum Shop, with date of establishment 1980, and date of start of operations 1980; interview with Scott Grewell, store manager, dated February 21, 1991; joint tax returns from 1985 through 1990; advertisements for the Shop, with a picture of the claimant as the owner (1986); and a promotional pamphlet and resume from September 19, 1989, in which the claimant was running to become a member of the school board.

The Claimant`s Rebuttal of the Exhibits (supplied by Mr. Douillette on August 6, 1991 to the Office), Ms. Leiton mentions in her June 21, 2001 decision are as follows:

1990 tax return showing Phillip and Diane Zampino as owners of Zampino`s Drum Shop;

REBUTTAL: This was Douillette`s Exhibit 55. The tax return indicates clearly that it was a joint tax return of Phillip and Diane Zampino. The schedule C clearly lists solely Diane Zampino as the owner with her social security number. The Claimant consistently and constantly informed the Office of his activities in the FAMILY business. On 3/24/87, Claims Investigator Kathleen Toy states in a memo to the Claims Examiner: At the present time there is no way to put a monetary value on the family business and what part would reflect the claimant’s `earnings`. Even a review of the tax returns would only show the total `earnings` credited for self employment but would include both the wife and husband with no way to separate who would get what.

A March 20, 1991 transcript of an interview with Diane Zampino, the claimant`s wife;

REBUTTAL: This was Douillette`s Exhibit 25. This document was a Memorandum of an Interview and is NOT a transcript as Ms. Leiton stated in her final decision of June 21, 2001. Mr. Douillette inaccurately REPORTED many issues and circumstances in this report. In a ten (10) page affidavit by the Claimant`s former wife, Diane Zampino, dated December 7, 1992, she states many specific inaccuracies regarding Mr. Douillette`s written report regarding the interview with her on March 20, 1991. The rebutted (12/7/92) affidavit is important because the Office and BHR used the mis-stated testimony of Mr. Douillette`s March 20, 1991 interview, which was included in Mr. Douillette`s August 6, 1991 final report to OWCP, as a means of substantiating the Office`s position.

A June 18, 1991 transcript of an interview with the claimant;

REBUTTAL: This was Douillette`s Exhibit 26. This document was a Memorandum of an Interview and is NOT a transcript as Ms. Leiton stated in her final decision of June 21, 2001. Mr. Douillette inaccurately REPORTED many issues and circumstances in this report and took many things out of context. He wrote the information with negative connotations and left out many facts around the issues that were discussed at the interview.

Social Security Administration records for the period from 1972 through 1977:

REBUTTAL: This was Douillette`s Exhibit 4. This exhibit covered the years 1972 thru 1985 NOT 1972 through 1977 as Ms. Leiton stated in her June 21, 2001 final decision. This proves the following important points: 1) The former bookkeeper made an error in 1979 and 1980 by listing the Claimant`s social security number on the schedule C instead of the Claimant`s wife, 2) The bookkeeper properly listed on the schedule C of the joint tax returns of the Claimant and his wife, the social security number of the Claimant`s wife on the 1977-78-81-82-83-84 and later corrected the 85 tax return plus all the tax returns from 1986 through 1990, the time period of this case.

Evidence that the investigator had reviewed checks from the Shop, 99% of which were signed by the claimant from 1988 through 1989;

REBUTTAL: The Claimant never denied participating in the business. A five (5) page detailed informative report was sent to the Office by the Claimant on January 2, 1986. On page 3 the Claimant states: I`ve personally controlled the direction of the business by setting up store policies, advertising, some accounting work such as recording the sales slips and purchasing, and also payment of wages to employees. The Claimant and/or his wife were the only persons authorized to sign checks. However, in a three (3) page affidavit prepared by Taunya (Moncrief) Dietry, secretarial supervisor of the business, she states on page 1 paragraph 7, second sentence: I (Taunya) was involved in 99% of the check writing, posting, and/or mailing and/or cash process of the business. I never wrote a business check to Phillip Zampino Sr., nor do I ever recall posting any business check that benefited Phillip Zampino Sr. I can unequivocally state, Phillip Zampino never received an income or any financial benefit from the store. As a convenience to me and/or Scott Grewell, Mr. Zampino was asked to sign many checks in advance, so I could calculate paying bills, and take care of mailing the checks to the companies, and Scott could receive COD orders.

Bank signature cards for the business signed by both Mr. and Mrs. Zampino on February 21, 1990;

REBUTTAL: These bank signature cards were volunteered to the Office by the Claimant on February 21, 1990 along with many other volunteered documents and statements about his activities in the business. It should be noted that, on May 22, 1990 is the date Mr. Douillette began to request documents from the Claimant and/or his wife. Therefore, this was not information Mr. Douillette uncovered during his investigation as Ms. Leiton indicates in her June 21, 2001 decision. Mr. Douillette pulled this information from the Claimant`s case file and resubmitted it in such a way as to present it as new information. Additionally, it was not unusual for the Claimant and/or his wife to sign documents relative to personal and business matters because of the simple reason of them being husband and wife. Please refer once again to the two (2) affidavits of Donald Sauerbier, CPA, which clearly explains the views of IRS and other tax departments regarding the husband and/or wife associated with a business.

January 31, 1988 bank statement for the drum shop:

REBUTTAL: This was Douillette`s Exhibit 29. This is simply a bank statement for the business with no other significance.

Copy of an April 18, 1975 vendor`s license to the claimant for sales and teaching; Application for vendor`s license signed by the claimant as sole owner on April 18, 1975; August 10, 1990 application for vendor`s license to make sales, wife as sole owner beginning October 1, 1990;

REBUTTAL: This was Douillette`s Exhibit 30-31-33. The Claimant worked part time for the USPS in 1972-73 as a result of the 1972 injury. The Claimant returned to FULL TIME employment in February 1974 until April of 1976. The Claimant was NOT in receipt of OWCP benefits from February 1974 until later in 1976. This is important because of concurrent employment prior to being put onto disability by the USPS.

This vendor`s license was necessary due to the Claimant and his wife moving to a different home and because taxable sales were necessary to report. From 1968 to 1975 the Claimant operated from his three (3) previous home locations and there were no taxable sales to report or record, only non-taxable sales and service income. The 1975 vendor`s license stayed active until Donald Sauerbier, CPA, suggested that it be updated, even though The Ohio Department of Taxation considered it to be no big deal. In the affidavit of Donald Sauerbier, CPA, he explains that he suggested this change to the Zampino`s in early 1989. He also suggested waiting until the beginning of tax year 1990. He further explains in his affidavit as to why it was filed around August 10, 1990. The Zampino`s always relied on the recommendation of their family CPA. Jim Rowley, deceased 1988, the previous family bookkeeper for the Zampino`s, never suggested changes were necessary probably because it was no big deal to the State of Ohio or IRS.

February 21, 1991 business questionnaire from BBB Canton, Ohio, claimant listed as owner of Zampino`s Drum Shop, with date of establishment 1980, and date of start of operations 1980;

REBUTTAL: This was Douillette`s Exhibit 35. Hearing Representative Ms. Leiton fails to accurately report and notice the following information about this exhibit in her June 21, 2001 decision. 1) The date of the questionnaire is 11/12/87 NOT February 21, 1991 as Ms. Leiton indicates. 2) The Claimant signed the questionnaire prior to its completion. It appears someone at BBB completed the rest of the information. (It`s important to understand that the perception of the community was that the Claimant was the owner due to his history in music education since 1961 and because his name was ZAMPINO). 3) Operations of the family business began in 1970 NOT 1980 as Ms. Leiton indicates. 4) 1980 was the date the business moved to its current location, NOT the date of establishment of the business as Ms. Leiton indicates.

It`s important to point out that one year earlier the Claimant reported to the Office he controlled the direction of the business and the USPS and the Office were satisfied with all activities and income reporting by the Claimant as stated in the 11/20/87 USPIS files submitted in Exhibit 1 to Ms. Leiton on January 31, 2001.

It was not uncommon for people knowing of, speaking to, or dealing with the Claimant to assume that he was the owner of the business. In this case, the Claimant was the founder of the business in 1968 and began teaching in 1961. His reputation was established seventeen years prior to his wife receiving her inheritance and he and his wife then agreeing in 1978, that she would be considered the legal owner. The Claimant and his wife agreed, for the sake of attempting to build the business, it would be best, because of the nature of the business being male dominated and because of the reputation of the Claimant, that they not make a big deal out of the legal ownership change.

However, the Claimant believed that the OFFICE was entitled to know all of the facts surrounding his situation. Therefore, the Claimant was forthright with the OFFICE and revealed all of the above information, information about the inheritance, family business, income, activities etc., many years before the USPS investigation took place in May of 1990. The Claimant offered more information than requested by the Office and he even invited them to ask him whatever they wanted to, by stating: If you need any further information please let me know.

Interview with Scott Grewell, store manager, dated February 21, 1991;

REBUTTAL: This was Douillette`s Exhibit 38. In Scott Grewell`s (store manager at that time and current owner of the business) affidavit, dated December 1, 1992 he states the following on page 2 of his affidavit: During my interview with Mr. Douillette and Mr. Flowers on February 21, 1991 I gave them an example as to why Mr. Zampino`s picture was on envelopes etc. regarding advertising. I stated, Would you go to an automotive repair shop if you knew a woman owned it? We have a similar male image type business because of mostly drummers being male and prejudice towards females. I have read over Mr. Douillette`s report of my interview with him, and have noticed that statement was omitted from his report. Additionally in his report, several inaccurate statements and/or comments were made which are out of context compared to what I said or meant.

Joint tax returns from 1985 through 1990;

REBUTTAL: This was Douillette`s Exhibit 50-55. Every Schedule C and SE forms on these tax returns clearly list Diane J. Zampino as the legal owner of the business. Through the tax returns and checks written, Diane J. Zampino NOT the Claimant received a financial benefit from the business. The 1985 tax return lists Diane J. Zampino on schedules C and SE; however, the bookkeeper made an error in listing the Claimant`s social security number instead of Diane`s. This was later corrected with Social Security because the CPA had documentation to prove the error. In all probability the bookkeeper made the same error in 1979 and 1980. However, those tax returns were not available when Donald Sauerbier, CPA, discovered the 1985 error made by the deceased bookkeeper. All of these tax returns substantiate the Claimant`s statements to the OFFICE. However, Ms. Leiton ignored this exculpatory evidence in her June 21, 2001 decision.

Advertisements for the Shop, with a picture of the claimant as the owner (1986);

REBUTTAL: This was Douillette`s Exhibit 39-41. Mr. Douillette assumes that the Claimant`s picture on advertisements for the business constitutes legal ownership of that business. Not one of the exhibits states that the Claimant is the owner as Ms. Leiton states in her June 21, 2001 decision.

The Claimant`s picture was on advertisements because he was the founder of the business and was the one who had the teaching reputation since 1961. The Claimant`s picture and family (Zampino name) reputation were used to promote the business. See the two (2) affidavits by Scott Grewell, Taunya (Moncrief) Dietry, Deana Zampino, Helen Zampino, Diane Zampino and most importantly the two (2) affidavits by Donald Sauerbier, CPA.

A promotional pamphlet and resume from September 19, 1989, in which the claimant was running to become a member of the school board;

REBUTTAL: This was Douillette`s Exhibit 43-44. The Claimant and the Canton Postmaster were in Rotary. The Claimant sent this information to all Rotary members asking for their support to elect the Claimant onto the school board. The Canton Postmaster in turn submitted it to his personnel section that in turn sent this same information to OWCP. OWCP David T. Woods, sometimes Acting Director, Claims Manager and Senior Claims Examiner responded to the USPS on September 20, 1989, regarding this information that was sent to him by the USPS, with the following words:

the available evidence does not at this time establish a basis to terminate or reduce compensation. Also, for your information the available evidence does not even contain any issues which might be developed for a basis to reduce or terminate compensation, with the exception of reemployment/rehabilitation.

The Office viewed this school board information and resume to be unimportant in 1989. Therefore, it should NOT be a part of any report or viewed as evidence against the Claimant.

Ms. Leiton`s decision of June 21, 2001 ignored the many affidavits and/or transcripts which explained and/or refuted the information she listed above which was obtained by Mr. Douillette`s August 6, 1991 report to the Office. It must be LOUDLY STATED that the Office was informed by the Claimant throughout the years (1972 to 1991) of nearly all of the above-mentioned information.

The ECAB should especially take note of the very lengthy questionnaires and reports submitted by the Claimant in January of 1986 and in January of 1990, which is prior to the May 22, 1990 direct involvement of Mr. Douillette.

Mr. Douillette took a great deal of information from the Claimant`s case file, especially information submitted by the Claimant to the Office in January 1986 and the first couple months of 1990, and he resubmitted it in his report to make it appear as if he uncovered this information and that there was wrongdoing by the Claimant.

If someone in the Office or BHR would have taken the time to read all information submitted to the Office in narrative form by the Claimant to the Office, the very important affidavits of Don Sauerbier, CPA (2 affidavits); Scott Grewell, store manager and now owner (2 affidavits); Taunya (Moncrief) Dietry, secretarial supervisor; Deana Zampino, secretary; and Diane Zampino, the Claimant`s former wife, the OFFICE and BHR would have better understood the entire operations of the business, the false statements made by Mr. Douillette and that the Claimant did absolutely nothing intentionally wrong nor was he ever evasive with the OFFICE. Also, it`s very difficult and beyond the Claimant`s ability to express and/or address the many immaterial exhibits presented by Mr. Douillette.

As you have read and will continue to read in this brief, the ECAB must conclude according to; 20 CFR 10.320 (1), (2); FECA PM 9-200.5(b) (2); Equitable Estoppel, that the lack of any evidence indicating awareness of a mistake entitles the Claimant to the benefit of the doubt.

It is clear the Office made no attempt to clarify and/or verify with the Claimant any conflicting facts presented to the Office by the USPS, nor did they give the Claimant the benefit of the doubt as required. FECA PM 2-809.10 (d) (3).

It should also be noted that a claims examiner may not make findings based on undocumented conversations or investigative reports which are not subject to examination or refutation. The Claimant was denied the opportunity to review or refute contradictory statements made by the USPS prior to the 2/28/92 preliminary decision of overpayment, LWEC and termination of medical benefits although he was entitled to do so; FECA PM 2-809.5(d); FECA PM 2-809.11 (a), (b).

The USPS Mr. Douillette and the Office`s selective picking and choosing of erroneous theories in the Memorandum to the File dated 2/28/92 by using Mr. Douillette`s report of August 6, 1991, to support the Office`s position, while ignoring and misquoting facts in the Claimant`s file is in violation of, FECA PM 2-809.10 (d) (4), and FECA PM 2-1400.

Both the Office and BHR Ms. Leiton were required to give probative, subjective findings as presented by the Claimant through the many affidavits presented in this case and/or through his own testimony, FECA PM 2-809.10 (d) (5).

In this case, neither the Office nor BHR have thoroughly reviewed these documents and/or the case file prior to making their decisions. Therefore, one must conclude that the USPS, the Office and BHR have ignored subjective evidence, FECA PM 2-809.10 (d) (5), Cassaundra F. Wright, ECAB 90-439; April 25, 1990.

The ECAB must continue to remember in dealing with this case that the rules of reporting were extremely different in the 1970`s compared to 1992 and 2001. In the 1970`s the mind-set and responsibility of this Claimant was extremely different compared to his 2001 understanding of the same.

Based on the forgoing facts, Inspector Douillette`s August 6, 1991 report should be stricken from the record and removed from the Claimant`s case file.

Therefore, striking Inspector Douillette`s August 6, 1991 report from the record and removing it from the Claimant`s case file should hereby reverse the Office`s overpayment decision of 3/23/92 and BHR`s decision of 6/21/01. Because all reference and reasoning of the Office and BHR affects the premature 3/23/92 and 6/21/01 decisions, which were obtained ONLY through Inspector Douillette`s August 6, 1991 report;

this case should hereby be dismissed!

However, if the ECAB does not find the preceding information strong enough to dismiss this case and reverse the Office`s 3/23/92 and BHR`s 6/21/01 decisions then the Claimant`s Facts, Background and Status of the Claimant`s Claim Information Contained in the Record, sent to BHR via fax (January 9, 2001(2000 error (containing 48 pages), just prior to the Claimant`s hearing in Cleveland, Ohio on January 31, 2001, must be reviewed by the ECAB which unquestionably prove that OWCP had been under extreme pressure by the USPS and received a great deal of false and/or misleading information, regarding the Claimant, in order to create an overpayment, LWEC and/or to terminate the Claimant`s benefits.

Throughout the years the USPS initially attempted to create medical conflict. However, all physicians and therapists (even the ones employed by the USPS and OWCP) have medically supported the Claimant`s injury, physical limitations, and have verified the Claimant`s inability to work and/or sustain a consistent four-hour workday. But, the USPS still attempted to create medical conflict and state false information to OWCP regarding the Claimant.

However, the medical proof proves beyond a doubt that even the USPS could not create Conflicting Medical Information as they were ordered to do in a Memorandum from USPS Regional Manager, Mr. Larry B. Anderson (see page two, lines 15, 16, 17, 22, 23, 24, 25) dated 5/5/89 letter enclosed directed to all USPS Injury Compensation Offices) in part, the following is stated: Moreover, usually when there is close medical follow-up, if the employee`s treating physician recommends complete disability, we can create a medical conflict (via fitness-for-duty)... ...we suggest that you examine your injury control procedures to insure that you have in place a system to create medical conflict with an employee`s treating physician...

The USPS was unable to create conflicting medical information against the Claimant because all of the doctors` reports (including the ones that OWCP and the USPS sent the Claimant to) were medically sound and similar in their diagnosis and work restrictions.

Those facts and reports are in the Claimant`s file substantiated by OWCP Claims Examiners and the Office`s Rehabilitation Section, and also, through many affidavits in the record which clearly point out the Claimant`s poor health conditions at home, in the family business, and the Claimant`s lack of activities in the family business.

When the USPS failed to create any CONFLICTING MEDICAL INFORMATION Mr. Douillette appears to have entered the case. Mr. Douillette contacted the Claimant and his wife, on or about May 22, 1990, requesting all business records, in an attempt to prove that the Claimant was deriving earned income from this business and that the Claimant was, therefore, not accurately or completely reporting his income (A moot point due to concurrent employment, conversations with USPS officials in 1973 and 1976, and the 1978 and 1979, 1032 forms stating: Do not report as pay any other income from a business which you fully or partially own, nor profits...). The Ed Lloyd certified copy of transcripts and tape verifies the 1973 and 1976 conversations with the USPS.

However, even though a moot point because of concurrent employment and other circumstances in this case, and the Claimant explaining these facts to Mr. Douillette, which Mr. Douillette omitted from his report to the Office, the Claimant and his wife continued to cooperate with Inspector Douillette, as he always did with OWCP as well, and Douillette was given every document requested. He was given the opportunity to photocopy these records, which he did to exhaustion, and he found no evidence (paychecks for Claimant, etc.) to indicate that the Claimant was deriving income from this business. Yet he chose to omit this exculpatory evidence in his report to OWCP.

Instead, Douillette nitpicked at issues that were unknown to the Claimant and he submitted petty selective and subjective information to the Office so that he could make it appear that the Claimant was not being forthright with the Office, which is an absurd fabrication and erroneous theory, and could not be further from the truth.

Judge Perelman characterized Inspector Douilette`s behavior to be similar to Inspector Javert in Les Misreables`. Judge Perelman stated: If Inspector Douillette and/or Mr. Bourquin wish to play the role of Inspector Javert to Mr. Zampino`s Jean Valjean, they should not be supported in doing so by this federal court.

Inspector Douillette withheld a two page narrative from the U.S. Attorney, mailed from the Claimant to OWCP dated 9/15/89 attached to the Claimant`s CA 1032 form, which in all probability may have convinced the U.S. Attorney that an overpayment DID NOT exist AND that the Claimant was continuing to supply OWCP with his activities and income in a very cooperative manner, even when not asked to do so. (EMPHASIS ADDED)

It is obvious that the USPS wanted to terminate the Claimant`s benefits based upon the history of this case. Please take special note of the many pressuring comments and inaccurate statements by the USPS (especially Ms. Johnson, and Mr. Bourquin) addressed to the OFFICE, requesting and sometimes demanding that OWCP terminate the Claimant`s benefits, and also attempting to coerce the Claimant`s physician to change the Claimant`s work restrictions (see Dr. John Thomas letter dated 11/14/91 to the Office). In a conversation with Mrs. Johnson from the USPS, Dr. Thomas states in his letter to the Office: In discussing Mr. Zampino`s disability I did not say that I would lessen his medical restrictions to reflect an eight hour job. I informed them that he was still totally and permanently disabled unless he had back surgery resulting in a good outcome. This is obvious proof that the USPS was continuing to give false information to the Office, attempting to create medical conflict and was attempting to unjustly terminate the Claimant`s benefits.

A thorough reading of the Ed Lloyd certified copy of transcripts and/or listening of the tape-recorded conversation confirm this to be fact. It is important for the ECAB to read the many communications between the USPS and the OWCP, which are in the record, in order to get a clear picture of the determination of the USPS to terminate and/or reduce the Claimant`s OWCP benefits. Such statements as:

USPS Ruth Johnson to Office, on 1/16/86: The U. S. Postal Service has asked for reactivation of Mr. Zampino`s case. It appears that he has rehabilitated himself and has a flourishing prosperous business, and that the Postal Service is paying him for working for himself. This is our third request.

Office (Toy) to Johnson on 2/28/86, internal note attached to 1/16/86 letter,

Called Ms. Johnson.She wants something done to reduce this man`s compensation from TTD. She feels that we should make him return to the Post Office or put him on a LWEC NOW. Explained to her that we really could not meet our burden of proof to do an LWEC nor would rehab section attempt return to duty for less than four hours a day. The medical section confirms and supports clm.`s limited ability. She wanted an IME and I stated no conflict exists between the AP and 2nd opinion exam.

OWCP (Toy) to USPS Johnson on 3/6/86, While we acknowledge that Mr. Zampino is working in the business we at this time have no way of putting a monetary value on that work. Further, the periodic nature of the activities Mr. Zampino has presented and his ability to work when he physically can does not allow this Office to translate the current information into a job done in the open labor market...

USPS to Office on 10/9/87, Please believe this individual to be capable of performing work, either in full or limited duty capacity. Runs his own business other than receiving compensation from OWCP.

USPS (Bourquin) to Office 7/7/89, Our Agency is asking your close review of this claim and we thank you for your consideration of our request.

OWCP (Acting Asst. District Director WOODS) to USPS (Bourquin) on 7/14/89, Mr. Zampino has consistently held that his is a family-owned business with his father doing most of the heavy work with the help of four individuals on the payroll. He maintains he personally averages 20 hours per week controlling the direction of the business, setting up store policy, advertising and some accounting work. In the absence of any evidence to the contrary, we have no reason to doubt the validity of Mr. Zampino`s statements.

USPS (Bourquin) to OWCP (Woods) on 9/19/89, I have submitted the attached for your review and information concerning the above referenced Claimant who has been the subject of numerous inquiries made by the USPS to your office.

OWCP (Woods) to USPS Bourquin on 9/20/89, Your letter of 9/19/89 appears to indicate that you have no intention of reemploying Mr. Zampino and that you are merely seeking some way, any way to terminate Mr. Zampino`s compensation benefits...It should be noted that we are disappointed in your not offering Mr. Zampino employment and we feel that we have been misled as to your intentions in this matter.

(See additional supporting documents in the record under the FACTS SECTION DATED: 9/27/73; 11/5/73; 12/19/73; 8/29/78; 1/16/86; 2/28/86; 3/3/86; 7/22/86; 7/28/86; 7/29/86; 3/24/87; 10/9/87; 10/29/87; 12/9/87; 4/4/88; 7/22/88; 3/8/89; 7/7/89; 7/11/89; 7/14/89; 9/15/89; 9/18/89; 9/19/89; 9/20/89; 9/25/89).

A thorough reading of the Ed Lloyd certified copy of transcripts (12/3/92) or see highlighted areas on the pages of the Ed Lloyd certified transcripts or listen to the tape recorded phone conversation is necessary to be read or reviewed to understand the possible illegal method of the USPS on getting injured workers back to work.

A reading of the certified transcripts and/or listening of the tape-recorded conversation confirm that the USPS typically handled cases in this manner. Therefore, making this Claimant`s statements regarding the harassment of the USPS to be fact and not merely an allegation.

Even after the chastising letter of 9/20/89 from Mr. Woods, OWCP Senior Claims Examiner, to the USPS (Bourquin), the USPS apparently activated Inspector Douillette and the Claimant believes (based on the facts of this case and contents of the Claimant`s file), that Mr. Douillette`s orders, mission and objective was to: Terminate the Claimant`s OWCP benefits!

Even after Magistrate Judge Perelman ruled on or about November 8, 1991 stating that Mr. Douillette was on a Witch hunt and a fishing expedition, USPS Inspector Douillette ignored the court and continued to proceed with his mission and objective: Terminate the Claimant`s OWCP benefits!

The majority of SO-CALLED evidence Mr. Douillette reported to the Office was already in the record due to the Claimant previously submitting that information to the Office without being asked. Mr. Douillette resubmitted information to the OFFICE that the Claimant previously reported and presented it in such a way that it would appear as if the Claimant did not report the information originally. (EMPHASIS)

Subsequently, after the USPIS received many congressional inquiries and unable to find any intentional wrongdoing by the Claimant, the USPIS, Inspector Douillette, chose to write the August 6, 1991 report that was overly broad, vague, biased, and confusing to the OWCP with a great deal of mis-stated testimony, unrelated or unimportant documentation and duplicated information that the Claimant had previously submitted to the Office.

It appears that the OWCP was not able to sort out the truth and misrepresentation of Inspector Douillette`s report, and did not know what to do other than to hastily and recklessly calculate an overpayment for the entire period (1977-1990) of time that the Claimant was receiving benefits, along with their termination of medical benefits which was reversed (in favor of the Claimant) within a month by the Office, and an LWEC decision which has been reversed (in favor of the Claimant) by BHR, in a decision dated June 21, 2001.

A careful reading of OWCP Senior Claims Examiner Karen Spehar prove that she abused her discretion in rendering her memorandum to the director dated 2-28-92 and the subsequent compensation order dated 3-23-92. A careful and thorough reading of these documents indicates that the instrument she used to base her decision was the USPS Douillette report of August 6, 1991.

Letters dated, March 15, 1992 and April 15, 1992, from the Claimant to the Office, point out many of Ms. Spehar`s erroneous statements, inaccuracies, contradictions, twisted facts and other errors which clearly leads one to believe that Ms. Spehar abused her discretion in this case. Ms. Spehar appeared to be predisposed to rule against the Claimant on all issues. Why?

The Claimant now believes that action was done to help get the USPS off of the backs of the OWCP, to transfer the Claimant on to his Civil Service benefits, and to scare and wear down the Claimant into negotiating a comprehensive settlement because, according to a worksheet by OWCP or BHR, it states: FORFEITURE DECISION IS VERY WEAK, and finally, so that the USPS would be happy that the Claimant was off the roles of the OWCP. Could this be the reason why individuals from the OWCP in Cleveland, Ohio were unwilling to testify at a BHR hearing regarding the Claimant?

Most importantly is a letter from the Claimant`s attorney to BHR Chief, Robert W. Barnes, dated 12/29/92, which points out very clearly that Inspector Douillette failed to include in his reports to OWCP relevant facts for the record in this case. Throughout Mr. Douillette`s investigation, he displayed a pattern of prejudice against the Claimant. Mr. Douillette had a desire to gather and report only evidence that tended to incriminate the Claimant, rather than to present an accurate picture of events. This letter also points out that Ms. Johnson (USPS) intentionally misrepresented Dr. Thomas` opinions, which indicates a clear bias on her part against the Claimant.

In a letter, dated 9-17-93, one and one half years after Karen Spehar rendered her decision to the director, the U.S. Attorney and the very prejudiced and biased Inspector Douillette agreed during the negotiation period of the comprehensive agreement, that the overpayment period was from October-November 1987 to May 1990 (this will be explained later in detail). In other words, 1977 to 1987 was not an issue even with Mr. Douillette and the U.S. Attorney. It may have also been a point of law: The action must be brought within six (6) years from the date the (alleged) violation is committed. 31 U.S.C. 3731 (b). This means that the alleged time period would be March 1, 1986 to May 7, 1990. These facts further prove the recklessness in which this case has been handled.

From the Claimant`s point of view, the Claimant finally BROKE and could no longer physically, financially, and emotionally endure the INHUMANE tactics of an over zealous Inspector Douillette whose mission was to continue his investigation, until he GOT HIS MAN. Consequently for the sole reasons of the Claimant protecting his family, health, finances, and his school community and his good name, he decided to enter into a plea bargain.

The Office has improperly determined an overpayment based upon the Claimant`s plea bargain rather than the facts and circumstances in the Claimant`s case file.

MOST IMPORTANTLY, the ECAB should consider the circumstances that lead to the Claimant feeling forced to enter into a plea bargain versus being found guilty or convicted at a trial because they are two distinct differences and should be treated as such in this case.

The plea bargain violations were arbitrarily and randomly selected in order to negotiate a comprehensive settlement. It is important that the ECAB read Attorney Richard A. Nicodemo`s August 10, 1994 affidavit, which is in the record (Emphasis added to paragraphs 5, 6, 9). PARAGRAPH 10 of his affidavit states: Judge Gallas indicated to me personally that he sympathized with Phil and felt that he was a victim of an unfortunate set of circumstances.

On April 5, 1997, the Claimant received his USPIS investigation files under the privacy act. The Claimant attempted to acquire these records since 1991. On or about May 20, 1996, BHR acknowledged Claimant had previously negotiated a global settlement and BHR was working on a final agreement. This appears to be the reason why the USPIS released these records to the Claimant.

The investigative files substantiate many of the Claimant`s statements and arguments. These facts and documents were submitted to HR Ms. Leiton on the date of the Claimant`s hearing, January 31, 2001, and should be in the record as EXHIBIT 1. Please take SPECIAL note of the inspector`s internal note regarding the Claimant, which is dated 11/20/87, and reads:

Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income.

This internal (USPIS) investigative note alone is obvious proof that the Claimant had been very honest and truthful with the OWCP, even according to the USPS inspectors. This is obvious and exculpatory evidence as to why 1977 thru 1987 was not an issue originally with OWCP but in particular at this time period with the U.S. Attorney and Mr. Douillette.

Even though the USPS believed that the Claimant was in fact being very cooperative and honest with the Office, the USPS continued investigating the Claimant due to the many pressuring comments, inaccurate statements and coercion of the USPS (Ms. Johnson and Mr. Bourquin), which is well established in the Claimant`s file and is in the record.

The USPIS FILE also substantiates Federal Judge Perelman`s statement: Based upon all the foregoing, it is this Court`s conclusion that the Postal Service is engaged in conduct somewhere between a witch hunt and a fishing expedition as regards Mr. Zampino.

Judge Perelman also states that the conduct of the USPS Inspector Douillette would not be tolerated in his court. By reading the 48 page FACTS SECTION submitted via fax to Ms. Leiton on January 9, 2001 which she received prior to the hearing on January 31, 2001, further proves Federal Judge Perelman`s statement that the USPS was conducting a witch hunt and a fishing expedition.

The following dated documents: 9/18/89; 10/5/89; 10/16/89; 10/19/89; 10/26/89; 9/19/90; 6/26/91; 2/21/91; 5/6/92; 5/12/92; 5/15/92; and the supported documentation in the record, The USPIS files submitted to HR Leiton further proves Federal Judge Perelman`s statement.

Additionally, in the USPIS files submitted to HR Leiton, the ECAB should note that the Claimant was in full and total cooperation with the OWCP, the USPS and the USPIS at all times.

Also, it is important for the ECAB to consider the fact that the Claimant has NOT received all of his records from the USPS, USPIS, and OWCP as he requested many times, since 1991. Consequently, the Claimant is at a disadvantage in this case until all records are turned over to him. In this case, it is safe to assume that many phone conversations and/or personal visits from Inspector Douillette took place with individuals from the USPS and OWCP. It is also appropriate to assume, because of the nature of this case and the history of the USPS in dealing with this case (the strong evidence in the record concerning the USPS wanting the Claimant`s benefits terminated), that the most delicate, sensitive and private strategies on how to terminate Mr. Zampino`s benefits were discussed over the phone or in person. However, there were not any records of personal visits or phone conversations submitted to the Claimant in his request, under the Privacy Act, for a complete copy of his files. It may be a more probable assumption that Inspector Douillette did not document those visits or phone conversations, in order to prevent any records from surfacing. In this case, a probable assumption can, therefore, be drawn that this is why the Claimant has not received all of his records.

The first thing one must ask him (her) self is: was Inspector Douillette from the USPS honest and forthright, and did he negotiate in good faith with the Claimant and his Attorneys when negotiating a comprehensive settlement, and did he reveal all relevant information to the U.S. Attorney`s Office and present an objective report on August 6, 1991 to OWCP?

After anyone reviews the facts and the history of this case and seeing in the case file the relentless pursuit of the USPS to terminate the Claimant`s benefits, one would have to draw an obvious conclusion that it is not only doubtful, but very unlikely, that the USPS negotiated in good faith a comprehensive settlement with the Claimant and his Attorneys nor did Inspector Douillette present objective, truthful and complete material to OWCP regarding the Claimant. Mr. Douillette`s bad faith negotiations are obvious because the Claimant`s benefits were, in fact, terminated based on a new law being passed exactly at the same time, which the Claimant and his Attorney`s were unaware of during the time negotiations of the Comprehensive Agreement.

Based on the forgoing facts, Inspector Douillette`s August 6, 1991 report should be stricken from the record and removed from the Claimant`s case file.

The USPS work product and report of August 6, 1991 is not credible information submitted to the Office. All such findings, decisions and references based on the August 6, 1991 report by the USPS to the Office should be ignored and stricken from the record in the determination of any overpayment in this case.

Striking Inspector Douillette`s August 6, 1991 report from the record and removing it from the Claimant`s case file should hereby reverse the Office and BHR`s overpayment decisions of 3/23/92 and 6/21/01. All reference and reasoning of the Office affects the Office`s 3/23/92 and BHR`s 6/21/01 decisions, which were obtained ONLY through Inspector Douillette`s August 6, 1991 report.

Therefore, all decisions should be reversed,

no overpayment should exist in this case, and

this case should be dismissed.

(2)

A Comprehensive Agreement had been reached by the Claimant and his Attorney with the USPS and the U.S. Attorney`s Office, which did not include termination of benefits

Prior to February 28, 1992 the Claimant was denied the opportunity to present facts and arguments to Ms. Sanford, The Cleveland Office Director, regarding Inspector Douillette`s Investigation. It is extremely important to note that negotiations of a comprehensive agreement began in 1992, between the Claimant and his attorney with the USPS and the U.S. Attorney, and was nearly complete by the time the unknown law (P.L. 103.112 (Stat. 1089, October 21, 1993) was used to terminate the Claimant`s benefits as of March 10, 1994.

The Claimant made it very clear to all parties that he would not negotiate a plea bargain unless all parties were agreeing to a global settlement.

With that intent, discussions and negotiations began in late 1992 with the hope of resolving all matters in this case. The Claimant and his Attorney negotiated a comprehensive settlement in good faith, which never included the possibility of terminating the Claimant`s benefits.

The Office and BHR have completely ignored the negotiated COMPREHENSIVE SETTLEMENT. The Office terminated all of the Claimant`s OWCP Benefits and aggressively pursued collecting the alleged overpayment decision of 1992. The Office ignored the WEC 21% reduction issue, which was reversed by BHR on the decision dated, June 21, 2001. The Office determined yet another overpayment of $1,200.67 from 3/10/94 to 4/4/94, which was waived by BHR on the decision dated, June 21, 2001, due to the Office not following proper procedure. And the Office terminated the Claimant`s benefits as of 3/10/94.

Additionally, the Office ordered OPM to transfer $121,702.53 of the Claimant`s benefits, (the Claimant should have received from 3/10/94 to 11/30/94 approximately $8,500.00 of those annuity benefits), possibly causing the Claimant an approximate $30,000 tax liability as a result of OWCP acting prematurely and calculating the wrong time period (1977-1990) according to the comprehensive agreement. In the comprehensive agreement (9-19-93 correspondences with USPIS, U.S. Attorney and the Claimant`s attorneys) the time period was from October-November 1987 to May 1990). This will be explained in detail below.

OWCP also ordered OPM to withhold from the Claimant’s monthly annuity check $191.25 effective 8/1/95, determining that the case was closed and the Claimant owed the overpayment decision of 3/23/92 without the Claimant ever having an opportunity to “DUE PROCESS” which ECAB later ruled in favor of the Claimant (ECAB Docket 94-2374, 1995).

The Office made yet another error by not transferring the Claimant’s Health Benefits from OWCP to OPM at the time OWCP terminated the Claimant’s benefits, causing the Claimant to be liable for an overpayment of $8063.12 with OPM. Even though OPM stated that OWCP was at fault and the Claimant was found to be “without fault” in this overpayment, the OPM is proceeding to recover the $8063.12 against the Claimant.

The Office was negligent communicating with the Claimant throughout the history of this case. The Office has made erroneous decisions and has dealt recklessly and very carelessly with this Claimant’s case. Most importantly, the Office violated the negotiated comprehensive settlement and made this case even more complex. (Emphasis)

Effective 10/1/95 OPM reversed the Office’s erroneous decision to withhold $191.25 from the Claimant’s monthly annuity check via a phone conversation and letters dated 10/11/95 to Congressman Ralph Regula and Senator John Glenn by OPM (Peteet), which are in the record. However, a total of $382.50 had already been withheld from the Claimant’s OPM annuity checks, which has not been calculated towards the alleged overpayment issue in this Claimant’s case.

The Claimant believes that the comprehensive plea agreement clearly fit the definition of a global settlement. See FECA-PM, Chapter 9-300.19.a..., which was in effect at the time the comprehensive settlement was negotiated, and Claimant’s letter dated March 31, 1994 directed to Ms. Sorenson, and The U.S. Attorney’s letters dated 9-17-93 and 11-24-93 evidencing the U.S. government’s intent underlying negotiations of a comprehensive settlement.

In this case, Hearing Representative Ms. Leiton ignored this evidence and did not give any weight or probative value to this information when making her decision on June 21, 2001.

The NEGOTIATED terms of the comprehensive agreement were resolved as follows:

(1) OWCP benefits would continue for Claimant,

(2) Claimant could continue to appeal the alleged decisions of the Office (Overpayment, WEC Reduction etc.), seeing that the U.S. Attorney’s Office stated that the government may have lost between $5,000 and $10,000,

(3) After the appeal process was complete, the Claimant agreed to discontinue receiving OWCP benefits and switch to OPM benefits (CIVIL SERVICE DISABILITY RETIREMENT), and

(4) The Claimant would be obligated to pay no more than $10,000 in the event the Claimant would lose his appeal process.

When negotiations were complete, the Claimant agreed to enter into a plea bargain with the understanding it was a Global Agreement and a COMPREHENSIVE SETTLEMENT.

In 1995 ECAB Docket 94-2374 ruled in favor of this Claimant after reviewing all the documents filed with the ECAB. It is further noted on page 9 of the ECAB decision that the plea agreement states:

***** “It is further stipulated by and between the parties that the total loss, for purposes of establishing the base offense level, is more than $ 5,000 but less than $ 10,000” (see 11/24/93 U.S. Attorney).

The ECAB states in their decision that... “the U.S. Attorney did not believe any actual overpayment exceeded $10,000.” (see 11/24/93 U.S. Attorney).

A letter dated 11/24/93 from the U.S. Attorney to the Claimant’s attorney (Richard Nicodemo), states in paragraph two, the last sentence: “In order to eliminate a possible problem with Probation when a presentence report is prepared, I felt it would be less of a problem to incorporate the more than minimal planning into the guideline computation as well as the total amount of fraud involved.”

Therefore, the U.S. Attorney made it very clear that the agreement between the parties included a possible debt to the Claimant of no more than $10,000 if the Claimant’s appeals process failed and the amount ($5,000 to $10,000) would be determined by OWCP (Emphasis Added). OWCP is misinterpreting the intent of the comprehensive agreement and ignoring the facts of this case in which the U.S. Attorney and the USPIS found a maximum potential overpayment to be no more than $43,000. OPM would reimburse $33,000 to OWCP. Leaving a balance of approximately $10,000.

Further proof of this is contained in a letter dated 9/17/93 from the U.S. Attorney to the Claimant’s OWCP Attorney (Craig Donaldson), the second and third paragraph state in part:

....”In addition, Mr. Zampino would permanently elect OPM disability retirement and seek retroactive entitlement to his civil service disability retirement benefits from October 24, 1987.

.... “Based on discussions with Postal Inspector Douillette, it is believed that the civil service entitlement would include a lump sum payment of approximately $33,000. Said sum would be used toward restitution for sums owed to the Office of Worker’s Compensation Programs.”...

These VERY IMPORTANT statements in the 9/17/93 correspondence substantiates three very important facts:

1. The U.S. Attorney and the USPIS agreed that prior to October 1987 the Claimant was cooperative in revealing all information to OWCP. In the USPIS files dated 11/20/87 reads “Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income.” (Submitted 1/31/01 in record)

2. Also proving that, with the exchange of money between OPM and OWCP, it would be impossible to determine a debt larger than $10,000. Therefore, concluding that the overpayment period was minimized by evidence and by the comprehensive agreement.

3. Especially in the eyes of the Inspector and U.S. Attorney involved in this case, this essentially means that the overpayment total should not have been more than $43,000. The USPIS and the U.S. Attorney determined this amount after the Office’s 3/23/92 erroneous and reckless overpayment decision of $221,528.33.

4. Concluding that all forfeiture dates listed in this appeal to ECAB dated prior to 11/20/87 or October 1987 should hereby be voided.

Also, the U.S. Attorney and the USPIS eliminated the 10/20/88 forfeiture date from the final agreement and concluded that only one (1) CA-1032 (9-15-89) form was affected in this Claimant’s case. This would drop the Claimant’s liability even further if he were to be found “with fault”.

In May of 1996, The Office of BHR, Chief Barnes, and Hearing Representatives Jacquelyn Newgent and Jan Miller-Woods acknowledged the fact that a global settlement exists. Subsequently, BHR, HR Newgent notified Claimant and Congressman Ralph Regula’s office that the Claimant’s hearing was canceled and that their office was working on a final agreement.

The Claimant played the tape-recorded message of HR Newgent’s phone call at the January 31, 2001 hearing that verified the above statement. In the record, it proves that HR Newgent verified to Congressman Regula’s office in May, June and July of 1996 that BHR was still working on a final agreement. The Claimant submitted into the record copies of correspondence received by Congressman Regula’s office verifying the above stated facts. Congressman Regula’s office advised the Claimant to do nothing until notified by BHR.

In this case, Hearing Representative Ms. Leiton ignored this evidence and did not give any weight or probative value to this information when making her decision on June 21, 2001. HR Leiton arbitrarily gave no validity to the Comprehensive Agreement, especially the letters of correspondence between the U.S. Attorney and the Claimant’s attorneys, which clearly defines the intent of the Comprehensive Agreement. (Emphasis Added)

After BHR canceled the May 20, 1996 hearing and acknowledged they were working on a final agreement, the Claimant did not hear from BHR again until the fourth quarter of the year 2000. It must be noted that BHR did nothing with the Claimant’s case for over four (4) years. In the 1995 ECAB decision, which ruled in favor of the Claimant, BHR was to act promptly and resolve the issues in this case. It must be noted that it is now nearly ten (10) years since the original decision of 1992 and over six (6) years since ECAB ordered BHR to promptly resolve the issues in this case.

Hearing representative Leiton in this case also ignored additional specific letters detailing the “comprehensive agreement”.

A letter dated 12-9-92 to Mr. Sierleja discussing a “comprehensive settlement” states: “If the United States Government has serious intentions of entering into a comprehensive settlement agreement with Mr. Zampino, as we have discussed before, this would be the time to contact us for that purpose.” The U.S. Attorney, on behalf of the United States Government, did in fact enter into such a comprehensive agreement with the Claimant. There were ongoing discussions between Claimant’s attorney and the Office wherein BHR was kept appraised of the status of the U.S. Attorney’s involvement and the effort to reach a comprehensive settlement.

During the comprehensive settlement discussions, the Office agreed, through its representatives, to clear a date for a hearing with both the Claimant and Claimant’s attorney because the Office agreed that the hearing would take much more time than the typical one hour allotted for hearings and that such a commitment of time should be discussed in advance with all parties before unilaterally scheduling same. The Hearing Representative in this case refused to discuss these terms for the January 31, 2001 hearing with the Claimant. However, she did allow for a two-hour hearing.

In a letter dated March 16, 1994, to BHR (Daniels), Claimant addressed in detail why the settlement agreement/plea bargain constitutes a “comprehensive settlement”.

Also, copies of correspondence between Mr. Zampino and the U.S. Attorney’s office, David A. Sierleja, AUSA, were provided to the Office, including letters between the U.S. Attorney and Mr. Zampino unequivocally setting up settlement negotiations attempting to put an end to the civil and criminal allegations with the understanding that Claimant would elect to receive Civil Service Disability Retirement in lieu of his lost wages benefits and in exchange for OWCP’s waiver of the right to recoup ANY ALLEGED OVERPAYMENT since Claimant was not seeking settlement for any reason other than the fact that a protracted resolution of these matters would completely deplete his financial, physical and emotional resources. The Claimant entered into the plea bargain with the understanding it was a comprehensive settlement and that he may owe between $5,000 and $10,000 if his appeals process failed. Thereafter, if his appeals process failed, the Claimant would transfer over to his OPM Disability benefits, and OWCP would determine a dollar amount due between $5,000 and $10,000. Also, the Claimant needed closure on something in his life due to extreme personal problems.

When Claimant received some of his records from the Office an internal memo worksheet written by BHR (marked as page 1688 by OWCP/BHR) reads as follows:

“FORFEITURE DECISION IS VERY WEAK - Claimant has been evasive at times - but Office has known of his involvement all along. Earnings are reported or under-reported, but sufficient to constitute forfeiture?”

Even though the Claimant was very certain that a conviction would not stand, he negotiated a comprehensive settlement in order to end this nightmare. It should be LOUDLY noted that even the pre-sentencing investigative officer, Scott Stutler said that this was an administrative case NOT a criminal case.

Some confusion has occurred between the Claimant, the Office and BHR about using the term “global” settlement. The BHR uses the term only to define closure to the amount due ordered by the court. However, (mutually agreed upon by and between the U.S. Attorney, the USPS, the Claimant and his attorneys), all parties involved viewed the term as a settlement that was comprehensive in nature, covering many issues and would put a closure to the Claimant’s case.

One of the issues specifically discussed by and between the parties, was the terms in which the Claimant would continue to receive OWCP benefits until his appeal process was exhausted. It is also important to remember that negotiations began in late 1992 and were, for the most part, completely negotiated prior to the enactment of P.L. 103-112.

The Claimant’s benefits were inappropriately terminated as a result of the terms of the comprehensive settlement agreement, and other reasons of law mentioned and/or argued contained herein, with this document.

The comprehensive settlement clearly indicates that the Claimant would owe no more than $10,000 if found “with fault”.

Sections 1 and/or 3 of this brief, contain facts, referenced evidence and arguments on behalf of the Claimant as to why this case should be dismissed or finding the Claimant “without fault” with no overpayment due the Office. However, if the Claimant does not prevail in Sections 1 and/or 3 of this brief, the ECAB should order the Office to honor the comprehensive agreement.

(3)

The Office’s March 23, 1992 determinations of

overpayment of $221,528.33 from 1/15/77 through 5/7/90

The BHR June 21, 2001 determination that the overpayment

March 23, 1992 in the amount of $221.528.33 be reduced to

$143,570.31 and limited to the following time periods:

July 2, 1980, April 4, 1983, June 8, 1985, August 23, 1985, October 15, 1985,

January 2, 1986, October 20, 1986, October 7, 1987, October 20, 1988,

September 15, 1989, May 11, 1990

Prior to February 28, 1992 the Claimant was denied the opportunity to present facts and arguments to Ms. Sanford, The Cleveland Office Director, regarding Inspector Douillette’s Investigation. As you have read, and will continue to read in this brief, the ECAB must conclude that:

It is clear the Office made no attempt to clarify and/or verify with the Claimant

any conflicting facts presented to the Office by the USPS, nor did they give the Claimant the benefit of the doubt as required. FECA PM 2-809.10 (d) (3).

It should also be noted that a claims examiner might not make findings based on undocumented conversations or investigative reports which are not subject to examination or refutation. The Claimant was denied the opportunity to review or refute contradictory statements made by the USPS prior to the 2/28/92 preliminary decision of overpayment, LWEC and termination of medical benefits although he was entitled to do so; FECA PM 2-809.5(d); FECA PM 2-809.11 (a), (b).

The USPS Mr. Douillette and the Office’s selective picking and choosing of erroneous theories in the “Memorandum to the File” dated 2/28/92 by using Mr. Douillette’s report of August 6, 1991, to support the Office’s position, while ignoring and misquoting facts in the Claimant’s file is in violation of,

FECA PM 2-809.10 (d) (4), and FECA PM 2-1400.

Both the Office and BHR Ms. Leiton were required to give probative, subjective

findings as presented by the Claimant through the many affidavits presented in this case and/or through his own testimony, FECA PM 2-809.10 (d) (5).

In this case, neither the Office nor BHR have thoroughly reviewed these documents and/or the case file prior to making their decisions. Therefore, one must conclude that the USPS, the Office and BHR have ignored subjective evidence, FECA PM 2-809.10 (d) (5), Cassaundra F. Wright, ECAB 90-439; April 25, 1990.

If the Office would have met with the Claimant, precedent-setting cases such as R. William Barnett, 10 ECAB 245; Brandfon V. Beacon Theater, Corp. 300 N.W. 111, 89 N.W. 2nd 617 (1949); Irwin E. Goldmen, 23 ECAB 46, Eugene R. Anderson, 40 ECAB 452, USDOL/BHR (Office’s decision dated 12/13/82, overpayment $ 56,287.86, name unknown) decision dated 5/18/83 by Hearing Representative, Susan M. Rydalch; Haran H. Golden, ECAB, Docket No. 83-880; Vernon Booth, ECAB Docket No. 54-9, and their progeny, which, if properly applied to the present case, would have all-but excused Claimant’s “failure” to report income. However, this issue is moot because the Claimant believed he reported in great detail all required information to the OFFICE.

The ECAB must continue to remember in dealing with this case that the rules of reporting were extremely different in the 1970's compared to 1992 and 2001 due to several changes in the CA 1032 forms. In the 1970's and 80's the mind-set and responsibility of this Claimant was extremely different compared to his 2001 understanding of the same.

Please take SPECIAL note of the inspector’s internal note regarding the Claimant, which is dated 11/20/87 (submitted to the BHR on January 31, 2001), and reads:

“Zampino is very cooperative regarding his outside employment. He has provided DOL

w/specific information on activities and income.”

Most Importantly, when the Claimant received his records from the Office an internal memo (which was written after 3/23/92) worksheet written by OWCP or BHR (marked as page 1688 by OWCP) reads as follows:

“FORFEITURE DECISION IS VERY WEAK -

Claimant has been evasive at times - but Office has known of his involvement all along. Earnings are reported or under-reported, but sufficient to constitute forfeiture?”

This internal memo worksheet unquestionably proves that individuals within the Office thought that the “Forfeiture Decision Is Very Weak.” However, Hearing Representative Ms. Leiton ignored this exculpatory evidence and did not give any weight or probative value to it when making her decision on June 21, 2001. (Emphasis Added)

In a letter dated 9/17/93 from the U.S. Attorney to the Claimant’s OWCP Attorney (Craig Donaldson), the second and third paragraphs in part state: ”In addition, Mr. Zampino would permanently elect OPM disability retirement and seek retroactive entitlement to his civil service disability retirement benefits from October 24, 1987. .... “Based on discussions with Postal Inspector Douillette, it is believed that the civil service entitlement would include a lump sum payment of approximately $33,000. Said sum would be used toward restitution for sums owed to the Office of Worker’s Compensation Programs.”...

These statements in the 9/17/93 correspondence substantiate three very important facts:

1. The U.S. Attorney and the USPIS agreed that prior to October 1987 the Claimant was cooperative in revealing all information to OWCP. In the USPIS files dated 11/20/87, reads “Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income.” (Submitted 1/31/01 in record)

3. Also proving that with the exchange of money between OPM and OWCP it would be impossible to determine a debt larger than $10,000. Therefore, concluding that the overpayment period was minimized by evidence and by the comprehensive agreement. Especially in the eyes of the Inspector and U.S. Attorney involved in this case, this essentially means that the overpayment total should not have been more than $43,000. The USPIS and the U.S. Attorney determined this amount after the Office’s 3/23/92 erroneous and reckless overpayment decision of $221,528.33.

3. Concluding that all forfeiture dates listed in this appeal to ECAB dated prior to 11/20/87 or October 1987 should hereby be voided. Also, the U.S. Attorney and the USPIS eliminated the 10/20/88 forfeiture date from the final agreement and concluded that only one (1) CA-1032 (9-15-89) form was affected in this Claimant’s case. This would drop the Claimant’s liability even further if he were to be found “with fault”.

Hearing Representative Leiton ignored this exculpatory evidence and did not give any weight or probative value to this information when making her decision on June 21, 2001. She arbitrarily gave no validity to the fact that up to November 20, 1987, the USPIS, USPS and the OFFICE were satisfied with the information that the Claimant reported regarding his ACTIVITIES and INCOME and the COOPERATION he always extended to the OFFICE. The U.S. Attorney and the USPIS were satisfied with all documentation prior to 11/20/87.

Also, the Office and Ms. Leiton ignored a point of law: “The action must be brought within six (6) years from the date the (alleged) violation is committed.” 28 U.S.C. Section 2415 and 31 U.S.C. 3731 (b). This means that the alleged time period of overpayment may have been March 23, 1986 to March 23, 1992.

However, there has not been a shred of evidence uncovered and/or inserted in the Claimant’s file after November 20, 1987, affecting any forfeiture listed which are prior to November 20, 1987. It is important to note that Ms. Leiton contacted the USPS prior to her making her final decision of June 21, 2001, requesting additional information. No one from the USPS or USPIS contacted or sent any additional information to BHR Representative, Ms. Leiton.

In essence, the forfeitures dated: July 2, 1980, April 4, 1983, June 8, 1985, August 23, 1985, October 15, 1985, January 2, 1986, October 20, 1986, and October 7, 1987 should be reversed because the USPIS, USPS the OFFICE and the U.S. Attorney were very satisfied with the information that the Claimant reported regarding both his activities and income and found the Claimant to be very cooperative (Much Emphasis Added).

It is very important for the ECAB to understand that the Office, USPIS, USPS and the Claimant were thinking the same way (same state of mind) and understood the reporting requirements to be the same as the Claimant reported prior to November 20, 1987. However, in this case, hearing representative Ms. Leiton, is applying her (2001) knowledge, thoughts and understanding of the CA 1032 forms against the forms and reporting requirements of the 1970's and 1980's which changed numerous times over the years. (Much Emphasis Added).

The forfeiture of October 20, 1988, should also be considered and be partially reversed for the same reason previously mentioned along with the prior list of dates because the reporting period covered the previous 12 to 15 months, which would have been prior to November 20, 1987. The U.S. Attorney and the USPIS eliminated the 10/20/88 forfeiture date from the final agreement and concluded that only one (1) CA-1032 (9-15-89) form was affected in this Claimant’s case.

It must be loudly stated that the U.S. Attorney reviewed all the Claimant’s records and files from 1972 to 1992 and found only one (1) questionable reporting period, (September 15, 1989) that the Claimant may have not reported all required information. This is why the U.S. Attorney stated:

“It is further stipulated by and between the parties that the total loss, for purposes of establishing the base offense level, is more than $ 5,000 but less than $ 10,000” (see 11/24/93 U.S. Attorney).

It is important for ECAB to also know that Inspector Douillette withheld a two page narrative from the U.S. Attorney, from the Claimant to OWCP dated 9/15/89, that was attached to the Claimant’s CA 1032 form, which in all probability may have convinced the U.S. Attorney that an overpayment DID NOT exist AND that the Claimant was continuing to supply OWCP with his activities and income in a very cooperative manner,….

The Claimant sent to the Board of Hearings and Review, dated March 15, 1992 certified number, P 627 952 369, and dated April 15, 1992 certified number P 627 952 355, a group of documents, arguments, facts, and affidavits and referred to ECAB cases and FECA law, which are relevant to this case and require a thorough reading by the ECAB. Strangely enough HR Ms. Leiton ignored all of the Claimant’s very valid arguments, precedent ECAB decisions, FECA Law (Rules and Regulations), exculpatory evidence, and vital facts omitted in Inspector Douillette’s report to the Office.

The Office’s final decisions - LWEC (reversed by BHR on June 21, 2001 decision), loss of medical benefits (reversed within 30 days of 2/28/92 decision by the Office), and overpayment, should NOT have been reached so hastily and recklessly on or about March 23, 1992, less than the thirty (30) days allowed a Claimant to appeal a “Recommendation to the Director”. Prior to reaching a final decision on the issues, the Office should have allowed the Claimant, at the very least, an opportunity to discuss the many biased comments and the vague, twisted, and omitted facts of Mr. Douillette’s reports to the Office.

The Claimant previously submitted additional documents, affidavits, taped phone conversations (and their transcripts), to BHR Chief Barnes on 12/14/95 and signed for via certified mail on 2/20/96. and were to be made a part of the record.

The Claimant submitted the following documents, affidavits, taped phone conversations (and their transcripts) at the hearing on January 31, 2001. Once again, Hearing Representative Ms. Leiton ignored exculpatory evidence in the affidavits and did not give any weight or probative value to it when making her decision on June 21, 2001. (Emphasis Added)

The list of persons signing the affidavits (red bold ones are very important), or involved in taped phone conversations (transcripts), are as follows:

Scott Grewell, The businesses employee, Manager, and now Owner.

Deana Zampino, Daughter of the Claimant, and former employee of the business.

Don Sauerbier, CPA, and Certified Public Accountant for the Claimant’s family and business.

Gregory George, Phone conversation (transcripts). Employee of Ohio Sales Tax Dept.

Kathy Rutledge, Phone conversation (transcripts). Employee of the Issuance of Vendors Licenses

Ed Lloyd, Phone conversation (transcripts). Former USPS rehabilitation supervisor.

Diane Zampino, Former wife of Claimant.

Objection to Defendants Motion to Alter Judgment, with 31 exhibits, filed 4/30/92

Helen Zampino, Mother of Claimant.

Donald Lazar, Owner of his own business, and customer of the business.

Chris Vallos, Insurance agent for the Claimant’s family and business.

Jamie Winter, Rental person of the family owned rental property in Akron, Ohio.

Kathy Nardecchia, Early customer.

Linda Cavella, Former marching corps director.

John Lerario, Long time friend and musician.

Sheldon Green, Owner of Copeco Business Machines.

Charles M. Stan, Former Bank Vice-President.

Dr. John Tarzan, Chiropractor and “looks a lot like” Claimant.

Attorney (Judge) Lee Sinclair, Claimant purchased from him a vehicle for the business.

The Claimant submitted the following documents, affidavits, taped phone conversations (and their transcripts) at the hearing on January 31, 2001. Once again, Hearing Representative Ms. Leiton ignored exculpatory evidence in the affidavits and did not give any weight or probative value to it when making her decision on June 21, 2001 (Emphasis Added). They are as follows:

Attorney Richard Nicodemo, Criminal attorney for the Claimant.

Attorney Craig Donaldson, Former OWCP attorney.

Scott Grewell, The businesses employee, Manager, and now Owner.

Taunya Moncrief, Former Secretarial Supervisor in the business.

Don Sauerbier, CPA, and Certified Public Accountant for the Claimant’s family and business.

Jacquelyn Newgent, BHR, Hearing Representative, (Tape on transcripts of 1/31/01 hearing)

Shirley Vorndran, Former marching corps director.

David Viola, Early customer.

Emily Cornelius, Former student in late 1960's.

Carole Sukosd, Former student in early 1960's.

Karen Metzger, Employee of North Canton Medical Clinic, and mother of a student.

Reverend Donald J. Oser, Pastor, Catholic Priest of Claimant’s parish.

Reverend Raymond L. Tucker, Protestant Minister and active in the Plain Local School District.

Richard Roth, Owner of his own business, and customer of the business.

Ronald Heath, Former student and student teacher beginning in late 1960's.

Joel Rothman, One of the first suppliers of the business.

Ken Barbato, United Parcel Service Driver.

Scott W. Haga, Student in the early 60's and customer early on.

George-George, Former student beginning 1968.

Larry Morgan, Superintendent of the Plain Local School District.

The affidavits/transcripts enclosed herein and/or sent to Chief Barnes on 12/14/95 thoroughly explain the operations of the business, which began in 1968, and the Claimant’s teaching, which began in 1961.

The documents, enclosed herein and/or sent to Chief Barnes on 12/14/95, especially the Motion by the Defendant against the USPS, substantiates evidence, facts, and prior ECAB decisions supporting Judge Perelman’s 11/8/91 recommendation, as to why the USPS (Mr. Douillette) was told he was on a “Witch hunt and fishing expedition.

The tapes (transcripts) and several affidavits, enclosed herein and/or sent to Chief Barnes on 12/14/95 clearly prove Mr. Douillette’s intentional omission and misrepresentation of facts, omission of critical statements of the individuals interviewed above, acquisition of records and documents.

The only two times the Office requested specific information was in 1986 and 1990. Again, the Claimant submitted more information than what was requested by the Office. The Claimant’s responses to these questionnaires are EXTREMELY SIGNIFICANT to this case. Once again, Hearing Representative Ms. Leiton ignored exculpatory evidence contained in these lengthy and detailed documents. She did not give any weight or probative value to these lengthy and detailed documents when making her decision on June 21, 2001. (MUCH EMPHASIS)

It is very obvious, by reviewing the entire case file of the Claimant, that OWCP was, in fact, given a significant amount of information by the Claimant. Inspector Douillette reentered a significant amount of that same information, which the Claimant gave OWCP in 1986 and 1990, in a way that one would believe or think that the Claimant gave the Office false information or no information, which is simply not true.

The many unanswered questions requested by the Claimant to OWCP, the early statements of facts on 12/19/73 and 8/1/76, the 1978 and 1979, 1032 forms advising the Claimant: “Do not report as pay any other income from a business which you fully or partially own, nor profits...” is significant proof the Claimant was permitted to own a business and not report income (concurrent employment) with no deductions in benefits. However, it is important to once again point out, the Claimant did not receive any earned income from the family business.

It is important to note, too, the affidavits in the record by CPA Don Sauerbier, Scott Grewell, Taunya Moncrief, and Deana (Zampino) Stafford, all who had complete and thorough knowledge of the monies of this business, point out the fact that the Claimant did NOT receive any checks or withdraw any funds from this business. Hearing Representative, Ms. Leiton ignored these affidavits and the facts and evidence contained in the affidavits. To reiterate a very important point, Inspector Douillette never submitted any evidence that the Claimant received any checks or withdrew any funds from this business.

In fact, his own records with the USPIS say just the opposite. On April 5, 1997, Claimant received the USPIS investigation files under the privacy act. Claimant had been attempting to acquire these records since 1991. On or about May 20, 1996 BHR acknowledged that the Claimant previously negotiated a global settlement and BHR was working on a final agreement. This appears to be the reason why the USPIS released these records to the Claimant.

Therefore, the only question that should remain is the health and work ability of the Claimant. The medical proof proves beyond a doubt that even the USPS could not create “Conflicting Medical Information” as they were ordered to do in a Memorandum from USPS Regional Manager, Mr. Larry B. Anderson (see page two, lines 15, 16, 17, 22, 23, 24, 25) dated 5/5/89 letter enclosed directed to all USPS Injury Compensation Offices).

In the USPIS files is a letter from Congressman Ralph Regula to USPIS, dated March 13, 1992, which in part states the following; “I understand that this matter has been pending for a period of years. It may be the second investigation since 1985. In the interest of justice to the taxpayers, and fairness to Mr. Zampino, the matter deserves timely resolution.”

Now ten years later, after the March 13, 1992 letter to the USPIS from Congressman Ralph Regula and nearly twenty (20) years of investigation (most of which the Claimant had no knowledge), this matter is long past being resolved in a timely matter, and a great deal of injustice and unfairness directed towards Mr. Zampino and his family is way beyond words of criticism or complaint of the OWCP, BHR and the USPS. With this kind of time lapse, the Claimant cannot receive justice nor has he been treated fairly.

It must be duly noted that the Claimant has requested at least three times, from the Office and HR Ms. Leiton, the complete documentation calculations used to determine the amount due by the Claimant based upon the June 21, 2001 decision. The Claimant has not received any documentation or correspondence from the Office or HR Ms. Leiton regarding these matters. Without this information the Claimant is unable to deal with all information related to this case.

A review of the years of the alleged overpayment (1/15/77 to 5/7/90) and a review of the 1032 forms will point out that the 1032 forms changed several times, and that the forms are ambiguous and confusing as they relate to the history of this Claimant’s case.

The Claimant relied heavily on the instructions and advice of OWCP. When a situation or set of circumstances changed in the Claimant’s life, OWCP was the first to be notified. The Claimant asked many relevant questions concerning the 1032 forms and STATED on many occasions over the alleged overpayment period TO THE OFFICE:

“IF ANY OTHER INFORMATION IS NEEDED, PLEASE LET ME KNOW, I WILL BE HAPPY TO HELP YOU”.

BHR Arguments and Claimant’s Rebuttal

concerning The Board of Hearings and Review declaring

an alleged $143,570.31 overpayment dated June 21, 2001

It is important for the ECAB to understand and consider the Claimant’s state of mind, intent and understanding of the CA 1032 forms during the approximate 20 years that the Claimant had communications with the Office and the USPS.

*** The Claimant was 24 years old at the time of injury and had no background or understanding of the very

ambiguous forms he was to complete. The Claimant trusted that he would be advised correctly and treated fairly and depended on the Office for guidance and help. (DETRIMENTAL RELIANCE)

*** Most importantly, the Claimant was forced out on disability and was told by OWCP and the USPS that he did not have to report self-employment. This is a moot issue because the Claimant did not receive any income but this issue must be argued based upon the reasoning that Ms. Leiton gave in her BHR decision on June 21, 2001.

*** The Claimant was forced on disability at a time he was not required to report self-employment. The 1978 and 1979 CA1032 forms specifically state that fact along with other documentation submitted into the record. The significant fact about this information is that the Claimant was told something during a period of time a law and/or requirement was in place with OWCP. Therefore, the Claimant thought that he was obligated under those laws and requirements. When the forms changed several times the Claimant was confused. He asked questions of the Office but did not receive clear-cut answers to eliminate his confusion.

*** The Claimant completely responded to every CA 1032 in detail, as he understood his reporting requirements. By the Office waiting fifteen (15) years to advise the Claimant he reported incorrectly on a CA 1032, when in fact the Claimant made numerous attempts to ask questions, inviting the Office to ask the Claimant anything, and requesting aide to specific questions the Claimant did not understand, certainly does not make sense. (LACHES)

Forfeiture dated July 2, 1980, BHR Argument: “as Claimant reported that there were no earnings, and SS reports show earnings, this period is declared forfeit. The claimant indicated that all money went back into the business; however the form specifically advised to report any such earnings.”

Claimant’s Rebuttal: The Claimant returned to the Office six (6) pages of detailed information including the CA 1032. The very last sentence in his six (6) page narrative states: “If you need any further information I will be happy to help you.” The Claimant advised the USPS and OWCP soon after his injury of 4/26/72 that the business was a family business since 1970. Since the inception of the business in 1968, by the Claimant, all money received relative to music was always put back into the business and was not received or used by the Claimant for personal reasons nor did he receive any personal benefits. This error of posting profits of the business was an accounting error made by the bookkeeper at that time who has been deceased since 1988. This error was not known by the Claimant until many years later. The 1979/80 Social Security earnings should have been credited to Claimant’s wife as a result of her legal ownership (reflected on all schedule C tax returns since 1977-78) because of her father passing away and leaving her an inheritance which was invested into the business. Her inheritance reflects the profits. This was NOT earned income.

It should be further noted that Docket No. 54-9, ECAB decision of Vernon Booth, states: “and the return on the investment of an employee’s capital, even though augmented by his personal attention in looking after the business in which it is invested, cannot be considered as if it were wages.”

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, intermittent work schedule and physical limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the Office, “If you need any further information I will be happy to help you”.

Claimant’s --“Rate of Pay”- and/or- “Involvement in Business”:

OWCP (Toy) to USPS Johnson, “While we acknowledge that Mr. Zampino is working in the business we at this time have no way of putting a monetary value on that work.

In a letter from OWCP (Acting Asst. District Director WOODS) to USPS (Bourquin) on 7/14/89 states: “Mr. Zampino has consistently held that his is a family-owned business with his father doing most of the heavy work with the help of four individuals on the payroll. He maintains he personally averages 20 hours per week controlling the direction of the business, setting up store policy, advertising and some accounting work. In the absence of any evidence to the contrary, we have no reason to doubt the validity of Mr. Zampino’s statements.”

The information Mr. Woods refers to in his 7/14/89 letter to the USPS (Bourquin) is information reported to the Office, in 1986, by the Claimant.

This evidence (just one of many sentences and statements by the Claimant to the Office) makes it very clear that the Office had a very strong statement of involvement, in the business, from the Claimant in order to calculate a “rate of pay”. If the Office thought it was appropriate or justified in this case they would have acted on it.

Also, this evidence makes it very clear that the Office and BHR in their decisions are grossly negligent and inaccurate by stating that: “the Claimant understated his involvement in the business.”

Forfeiture dated April 4, 1983, BHR Argument: failed to report reimbursement for gas and no income, despite the fact that he was working, and someone else could have been paid $4 per hour for same work.

Claimant’s Rebuttal: Incorporating the prior rebuttal it is note worthy to realize several things about this forfeiture determined by BHR. 1) No one, absolutely no one, could have ever been hired to do what the Claimant was doing. That is why the Claimant due to prior statements and forms by OWCP and the USPS, gave -0- amount on the forms in the late 1980’s when the form again changed and created some confusion. Still in 1983 the forms were very similar to the 1978 and 1979 forms.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, physical inconsistencies and limitations. Most importantly, no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE, “If you need any further information I will be happy to help you”.

OWCP (Toy) to USPS Johnson, “While we acknowledge that Mr. Zampino is working in the business we at this time have no way of putting a monetary value on that work.

All of the above information proves that OWCP had the necessary and complete information needed to calculate a “rate of pay”, but instead made a decision that, “we at this time have no way of putting a monetary value on that work.”

Relative to the $4 per hour issue - OWCP and the USPS wanted a number in order to determine WEC. That was the understanding of the Claimant, his wife and his attorney. That amount was not submitted with the intent that someone else would be hired or could do the same work as the Claimant for $4 per hour. It should be noted that the Office’s 3/23/92 decision affecting WEC was reversed by BHR in a decision dated June 21, 2001.

It is especially important to note that this $4 amount was never discussed or brought to the Claimant’s attention until late 1990 or 1991, therefore, not applicable on a form dated in the 1980's.

Documented proof of gas etc. can only be substantiated from the documents in the record, which are from 1988-89-90 because those are the years the inspector made copies of expenses related to the business.

This proves, again, that prior to 11/20/87 the USPS and OWCP were satisfied with the Claimant’s reporting. There is no evidence through any investigation or otherwise that states the Claimant received any money that would be classified as income. At times, the Claimant was merely reimbursed for the exact amount of money of the expense, including gas. There was absolutely no financial benefit to the Claimant.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, physical inconsistencies and limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE, “If you need any further information I will be happy to help you”.

But instead of the Office contacting the Claimant, the Office decided to say: “we at this time have no way of putting a monetary value on that work.”

Forfeiture dated June 8, 1985, BHR Argument: evidence reveals he was part owner of the music shop, had earnings, and he worked as supervisor and the Social Security earnings is an issue again.

Claimant’s Rebuttal: This was a family business as previously stated and has been clearly determined to be so, by OWCP, on many documents in the file. Once again the bookkeeper made a posting error of Social Security Earnings. It is note worthy to realize that this error did not occur in 1978, 1981, 1982, 1983, 1984, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993 etc. HR Leiton ignored the affidavit written by Don Sauerbier, CPA. He took over the financial books of the family and the family business upon the death of the previous bookkeeper. It is EXTREMELY important for the ECAB to read the two affidavits written by Don Sauerbier, CPA.

Forfeiture dated August 23, 1985, BHR Argument: Claimant under-reported shop’s profits; the fact that he put the money from teaching and money earned into the shop does not relieve him of the responsibility of reporting could have paid others to perform his duties.

Claimant’s Rebuttal: It must be first noted that this date of forfeiture was NOT a CA 1032 form. Claims examiner Louberta Bullock merely asked the Claimant to respond to a couple questions. She asked, “Please describe the type of work you are performing. Who do you supervise?” “I am also requesting you to sign and return the enclosed CA-936.” The Claimant completed the CA-936 form and returned it. The Claimant supplied a two-page narrative to Ms. Bullock supplying her with the information she requested. In the narrative the Claimant states:“IF YOU’D LIKE TO KNOW THE PROFIT OF THE BUSINESS FROM YEAR TO YEAR. I CAN DIG OUT THOSE TAX FORMS AND SUBMIT THOSE FIGURES TO YOU.”... Ms Bullock did not request the Profits of the Business from year to year, as offered to be submitted by the Claimant.

It should be very clear that the Claimant was very confused as to what the OWCP wanted on each CA 1032 form due to previous statements in this brief. The previous arguments on the previous dated forfeitures would also apply on this date.

It should be noted by the ECAB that page 1689 (worksheet), in the case file of the OFFICE indicates that the Claimant did report his teaching to the Office for 1985.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, physical inconsistencies and limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE, “If you need any further information I will be happy to help you”, but instead of the Office contacting the Claimant the Office decided to say: “we at this time have no way of putting a monetary value on that work.”

Forfeiture dated October 15, 1985, BHR Argument: Claimant under-reported shop’s profits; the fact that he put the money from teaching and money earned into the shop does not relieve him of the responsibility of reporting could have paid others to perform his duties.

Claimant’s Rebuttal: This 1032 form changed again. On page 1, question 2 offers confusion and contradiction in the mind of the Claimant based upon the history of the Claimant’s case, prior reporting to OWCP and prior questions by claims examiners. The Claimant indicated he did not understand the questions.

In a narrative the Claimant states to Ms. Bullock:

“IF YOU’D LIKE TO KNOW THE PROFIT OF THE BUSINESS FROM YEAR TO YEAR. I CAN DIG OUT THOSE TAX FORMS AND SUBMIT THOSE FIGURES TO YOU.”...

Ms Bullock did not request the Profits of the Business from year to year, as offered to be submitted by the Claimant.

Therefore, it does not make sense that BHR’s argument, “Claimant under-reported shop’s profits;” is used in order to sustain forfeiture during the 1980's.

Another CA 936 was signed and sent to the OFFICE.

The August 23, 1985 forfeiture arguments are hereby incorporated for this time period of forfeiture.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, inconsistencies and physical limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE,

“If you need any further information I will be happy to help you”, but instead of the Office contacting the Claimant the Office decided to say: “we at this time have no way of putting a monetary value on that work.”

Forfeiture dated January 2, 1986, BHR Argument: did not report amount of money would have paid another individual to perform the managerial duties he performed, and he was owner of the shop.

Claimant’s Rebuttal: This was NOT a CA 1032 form. The Claimant was responding to Claims Investigator Kathleen Toy. The Claimant and Ms. Toy exchanged letters in December 1985, and the Claimant supplied Ms. Toy with answers to questions she asked the Claimant. The Claimant supplied a five (5)-page narrative in response to Ms. Toy’s questions.

The Claimant always stated that the business was a “FAMILY OWNED BUSINESS”.

On 12/4/85 an internal memo from the OFFICE states:

“To CE: ...OWCP RHB cannot sponsor “family business”. The question would be -- how does this enhance claimant’s W.E.C., which is currently 0%? If family does all the work (or claimant only works occasionally when able) how would you compute L.W.E.C.? See ECAB Decisions regarding Lump Sum Settlements.” Signed by GAP

This further proves the confusion of the OFFICE and their inability to know how to handle this Claimant’s case. The August 23, 1985 forfeiture arguments are hereby incorporated for this time period of forfeiture.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, intermittent work schedule and physical limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the Office,

“If you need any further information I will be happy

to help you”, but instead of the Office contacting the

Claimant the Office decided to say:

“We at this time have no way of putting a

monetary value on that work.”

Claimant’s --“Rate of Pay”- and/or- “Involvement in Business”: OWCP (Toy) to USPS Johnson, “While we acknowledge that Mr. Zampino is working in the business we at this time have no way of putting a monetary value on that work.”

In a letter from OWCP (Acting Asst. District Director WOODS) to USPS (Bourquin) on 7/14/89 states: “Mr. Zampino has consistently held that his is a family-owned business with his father doing most of the heavy work with the help of four individuals on the payroll. He maintains he personally averages 20 hours per week controlling the direction of the business, setting up store policy, advertising and some accounting work. In the absence of any evidence to the contrary, we have no reason to doubt the validity of Mr. Zampino’s statements.”

The information Mr. Woods refers to in his 7/14/89 letter to the USPS (Bourquin) is information reported to the Office, in 1986, by the Claimant.

If the Office thought it was appropriate or justified to calculate a “rate of pay in this case, the above evidence (just one of many sentences and statements by the Claimant to the Office) makes it very clear that the Office had a very strong statement of involvement, in the business, from the Claimant in order to calculate a “rate of pay”.

Also, this evidence makes it very clear that the Office and BHR in their decisions are grossly negligent and inaccurate in stating that: “the Claimant understated his involvement in the business.”

Forfeiture dated October 20, 1986, BHR Argument: although claimant reported teaching earnings, did not report amount of money could’ve paid someone else to perform his duties; still had ownership in the shop, and there was a profit.

Claimant’s Rebuttal: This was a family business and all previous arguments are relative to this forfeiture period.

In 1985 and 1986 the Claimant supplied narratives to the Office supplying a great deal of information. In one of the narratives the Claimant states:

“IF YOU’D LIKE TO KNOW THE PROFIT OF THE BUSINESS FROM YEAR TO YEAR. I CAN DIG OUT THOSE TAX FORMS AND SUBMIT THOSE FIGURES TO YOU.”...

No one from the Office requested that information. It should be very clear that the Claimant was very confused as to what the OWCP wanted on each CA 1032 form due to previous statements in this brief.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, inconsistencies and physical limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE, “If you need any further information I will be happy to help you”.

Forfeiture dated October 7, 1987, BHR Argument: claimant did not report earnings.

Claimant’s Rebuttal: The Claimant completed the CA 1032 in full. He also included copies of earnings, W-2 from Kent State University and a 1099 from the Musicians Trust Fund. The Claimant also wrote a one-page letter to CE Johnson.

This was a family business and all previous arguments are relative to this forfeiture period.

Forfeiture dated October 20, 1988, BHR Argument: under-reported teaching earnings; still listed as owner of business.

Claimant’s Rebuttal: All schedule “C’s” on the tax returns reflect the Claimant’s wife as being the legal owner for the previous reasons mentioned and argued. It is important to review the two affidavit’s by Don Sauerbier, CPA, in order for the ECAB to understand what the Claimant understood as it relates to legal ownership of a business. This was a family business and all previous arguments are relative to this forfeiture period.

Forfeiture dated September 15, 1989, BHR Argument: claimant admitted under reporting earnings; worked as supervisor, business had profit.

Claimant’s Rebuttal: This was a family business and all previous arguments are relative to this forfeiture period.

Forfeiture dated May 11, 1990, BHR Argument: claimant’s name still on business documents as the owner - he underplayed his role, did not report as earnings money that could have been paid to someone else to perform same duties.

Claimant’s Rebuttal: This was a family business and all previous arguments are relative to this forfeiture period.

The issue of earned wages in this case is not an issue because of concurrent employment and because the Claimant had no earned wages.

The Office has made a grave error and a terrible assumption that because the Claimant began a business he was earning money.

Even if the Claimant did receive earned wages from the business, the Claimant was advised by OWCP not to report them on his 1978 and 1979 CA 1032 forms and previous correspondence with the Office and the USPS, therefore, a moot point because of concurrent employment.

The Claimant was never formally notified that a law had changed regarding the reporting of earned wages. A precedent had been established on the 1978 and 1979, 1032 forms, and the statements of two (2) USPS supervisors, and the director of OWCP in Cleveland, Ohio (refer to the highlighted areas on the pages of the Ed Lloyd transcripts or listen to the tape recorded phone conversation) which verify the 1973 and 1976 conversations with the USPS and the director of OWCP in Cleveland) that due to concurrent employment the Claimant’s earned wages relative to music income would not be offset.

Once again, a moot issue because the Claimant received no earned wages.

The Claimant did not understand how to calculate, determine or how to report a “rate of pay” due to the unusual circumstances of the Claimant’s abilities, physical inconsistencies and limitations. Most importantly no one could be hired to do what the Claimant was doing. That is why the Claimant indicated numerous times to the OFFICE, “If you need any further information I will be happy to help you”.

IN CONCLUSION

ECAB should consider the following IMPORTANT FACTS:

(1) Inspector Douillette withheld a two-page narrative from the U.S. Attorney, from the Claimant to OWCP dated 9/15/89, which in all probability would have convinced the U.S. Attorney that an overpayment DID NOT exist and that the Claimant was continuing to supply OWCP with his activities and income in a very cooperative manner even when not asked to do so.

An excerpt from the USPIS files dated; 11/20/87, reads “Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income.”

Inspector Douillette omitted this exculpatory evidence of 9/15/89 and 11/20/87 when submitting his report to the Office and the U.S. Attorney.

(EMPHASIS ADDED).

It should also be noted that two (2) Federal Judges, the Parole Officer and Pre- sentencing Officer were sympathetic towards the Claimant. They all felt the Claimant was a victim of circumstances, that he was “RAILROADED”, and that he was forced into submission. (see Nicodemo affidavit re: Judge Gallas, and 11/8/91 decision of Judge Perelman). Even BHR indicated in their files, (PG. 1688) “FORFEITURE DECISION IS VERY WEAK.” (EMPHASIS)

(2) The Claimant, against the advice of his attorney, entered into a plea agreement, not because he felt he was guilty of any wrongdoing but because:

(i) The Claimant’s emotional and physical health (recently being diagnosed with cardiomyopathy and other heart related problems, later lymphoma cancer, in addition to job related back injury) was very poor;

(ii) The Claimant’s wife was abusing their children and was viewed as being very dangerous by professional counselors;

(iii) The Claimant’s children were suffering emotionally (especially his youngest son) due to the Claimant’s health, their mother’s behavior and the investigation tactics of Inspector Douillette, which were aimed at the entire family;

(iv) The Claimant’s financial resources had been depleted due to the investigation;

(v) The Claimant wanted to protect his school community, his reputation and good name;

(vi) The Claimant felt that he and his family could not endure anymore. The Claimant believed then, as he does now, that the best thing he could do for his family and himself was to somehow find a way to end this ongoing nightmare.

(3) The ECAB should determine if the Claimant is “with fault” or “without fault” based upon the facts, evidence and circumstances in this case. The ECAB should NOT presume the Claimant is “with fault” based upon the Claimant’s willingness to negotiate a plea bargain.

(4) If the ECAB determines “guilt” (“with fault”) through the Claimant’s admission then the ECAB should ONLY consider one CA 1032 form (1989), the one he pled guilty to.

Therefore, the Claimant is requesting the ECAB to seriously consider the VERY SPECIAL CIRCUMSTANCES in this case as to why the Claimant pled guilty and to consider the many hasty and erroneous decisions made by the Office.

But more importantly, the ECAB is asked to judge this case on the facts, evidence and circumstances ignored or overlooked by the Office and BHR.

IT MUST BE FURTHER NOTED, once the OWCP has accepted a claim and paid compensation, the burden shifts to the OWCP to establish by the weight of the evidence that the initial decision was in error. 20 C.F.R. 10.110(c), FECA-pm, Chapter 2-812(3); Betty F. Wade, 37 ECAB 556 (1986); Ella M. Garner, 36 ECAB 238 (1984); Ernest Dillion, ECAB Docket No. 90-78 April 24, 1990. The rationale used by the Office in all of their combined or distinct decisions in this case fails to meet that burden. Also, in this case, consideration must be given to 20 CFR 10.320 © (1), (2); FECA PM 9-200.5(b) (2); Equitable Estoppel,

“that the lack of any evidence indicating awareness of a mistake entitles the Claimant to the benefit of the doubt.”

Following a thorough investigation, incorporating Inspector Douillouette’s work-product, the United States Attorney’s Office found only two questionable violations of the law between 1972 and 1992. The Office simply used the two questionable violations as an overly broad suggestion (not evidence) that the Claimant knowingly misreported his income (a moot issue anyway due to concurrent employment) in relation to all his claims for ongoing compensation, not just the instances that supported the two questionable violations.

The Claimant, represented by his attorneys, entered into a comprehensive settlement, which in all intent and purposes was to close all matters concerning this case. However, after the fact of entering into the comprehensive settlement, the Office refuses to honor that agreement, even after acknowledging it existed on 5/20/96 via Hearing Representative Newgent.

The record contains an abundance of factual and legal reasons why the entire overpayment should not be sustained AND why the Claimant’s benefits should not be terminated. Issues of permissible concurrent employment, use or misuse of speculation by Claimant’s employer (USPS), the USPS attempting to create conflicting factual and medical evidence, forged documents by the USPS, compliance with FECA-PM, calculating wage earning capacity from old data, etc. Also, there is ample evidence in the record to show that the Claimant relied upon erroneous and/or lack of information from the Office in attempting to report his earnings, and the Claimant arguably was without fault. FECA-PM, 9-200.5.B.2. Dale E. Thomas, Docket No. 90-189.

The record contains an abundance of factual affidavits, letters, and transcripts (with tapes), which unquestionably prove, in summary, the following:

*** The Claimant began teaching in 1961 and began his music career in 1955

*** The Claimant began a music business in August 1968 and began working for the USPS in September 1968

*** The Claimant, after 4/26/72 injury, did very minimal work within the business

*** The Claimant worked full time for the USPS until 4/26/76

*** The Claimant was forced to retire on disability and his final departure date was 3/4/77

*** The USPS made false allegations, forged documents and harassed the Claimant

*** The Claimant never received earned wages from the business

*** The Claimant relied solely on a Certified Public Accountant

*** The Claimant was very respected within the community and built a very respectable reputation in music education

*** The Claimant is honest, trustworthy, credible and has been totally cooperative with the OWCP by reporting all activities and income, even when not required or asked to do so, and even asking OWCP if they need more information to let him know

*** The USPS Johnson and Bourquin attempted to create conflicting medical evidence and fabricated theories in order to terminate the Claimant’s benefits

*** USPIS Inspector, Douillette, omitted facts, statements, and evidence when presenting information to OWCP

*** The U.S. Attorney and the USPIS agreed that prior to October 1987 the Claimant was cooperative in revealing all information to OWCP and that the overpayment period used for the purposes of a comprehensive agreement was from October 1987 to May 1990

*** The USPIS files dated 11/20/87, reads; “Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income.”

In this case, according to Federal Judge Perelman, the USPS was on a “witch hunt and fishing expedition”, and a mission to terminate the Claimant’s benefits.

A Claimant’s factual statements supporting his claim are of great probative value and must stand unless refuted by strong and persuasive evidence, (Charles B. Ward, 38 ECAB 667; Samueal J. Chiarella, 38 ECAB 363; William Circobitch, 38 ECAB 756). In this case the Office has not presented strong and persuasive evidence. The Office only presents confusion, theories, false biased statements and twisted arguments made by the USPS.

Also, in this case, Hearing Representative Ms. Leiton ignored exculpatory evidence and did not give any weight or probative value to evidence presented when making her decision on June 21, 2001.

Under the Privacy Act, the Claimant properly requested his files from the Office after Inspector Douillette submitted his biased report to the Office. The Office sent the Claimant his records but did not include Inspector Douillette’s report and stated in September 1991: “you have a complete copy of your files.” The Claimant requested to have a meeting with someone in the Office but was never afforded that opportunity.

If the Office would have met with the Claimant, precedent-setting cases such as R. William Barnett, 10 ECAB 245; Brandfon V. Beacon Theater, Corp. 300 N.W. 111, 89 N.W. 2nd 617 (1949); Irwin E. Goldmen, 23 ECAB 46, Eugene R. Anderson, 40 ECAB 452, USDOL/BHR (Office’s decision dated 12/13/82, overpayment $ 56,287.86, name unknown) decision dated 5/18/83 by Hearing Representative, Susan M. Rydalch, Haran H. Golden, ECAB, Docket No. 83-880; Vernon Booth, ECAB Docket No. 54-9, and their progeny, if properly applied to the present case, would have all-but excused Claimant’s “failure” to report income. A moot issue in this case because the Claimant did not receive earned wages.

Most Importantly, when the Claimant received his records from the Office an internal memo worksheet written by OWCP or BHR (marked as page 1688 by OWCP) reads as follows: “FORFEITURE DECISION IS VERY WEAK - Claimant has been evasive at times - but Office has known of his involvement all along. Earnings are reported or under-reported, but sufficient to constitute forfeiture?”

The Claimant adamantly argues that he was NEVER evasive to the Office. The Claimant feels he was very cooperative and supplied more information than ever requested by the Office.

The Claimant further argues that he always stated to the Office, “If you need any additional information, please let me know.” In fact, inside the USPIS files show the following internal message written 11/20/87 on Claimant by the Investigator: “Reviewed case file, Zampino is very cooperative regarding his outside employment. He has provided DOL w/specific information on activities and income. DOL needs to know extent of ability to determine LWEC.”

It must be restated that the Claimant’s benefits were inappropriately terminated, as a result of the terms that the Claimant entered into with the government under the comprehensive settlement agreement, for the unlawful application of P.L. 103-112 and for the arguments contained herein, with this document.

Based upon the facts and arguments presented herein, the Claimant has proven without a doubt that:

1) the USPS was determined to TERMINATE the Claimant’s benefits and would do so even by violating the law and by submitting into the record false information and a biased August 6, 1991 report,

2) that a “COMPREHENSIVE SETTLEMENT” was, in fact, reached and acknowledged by BHR, and that OWCP did not properly apply P.L.103-112 in this case,

3) that the Office and BHR ignored vital facts and evidence in this case

Therefore, the Claimant is seeking to be refunded in full his OWCP benefits, which were terminated as of 3/10/94 to the present time, with accrued interest. The Claimant is asking that the action taken by the Office on or after 3/10/94, which terminated the Claimant’s benefits be reversed and vacated until the Claimant’s ‘DUE PROCESS” is complete as agreed in the comprehensive settlement. Therefore, the Claimant is seeking to receive all OWCP benefits.

The Claimant has requested the documentation in support of the following calculations made by BHR, the OFFICE or OPM. His request has not been granted. Assuming their calculations are correct the following figures can be used to resolve this case.

With the proper LWEC adjustment due to the BHR reversing the Office’s decision and by making the repayment to the Claimant of $ 9,072.21, along with the Claimant’s Civil Service Benefits which were improperly and prematurely withheld by OWCP totaling ($8259.33 + 382.50) = $ 8,641.83, there will be no overpayment due the OFFICE or OPM even if the ECAB determines the Claimant is “with fault” owing between $5,000 to $10,000.

The OPM overpayment of $8,063.12 due by the Claimant and found to be “without fault” as a result of OWCP’s error would be paid by OWCP out of the $17,714.04 due the Claimant as stated in the above paragraph. The balance due the Claimant ($9,650.92) should be paid directly to the Claimant.

However, if the ECAB determines that the Claimant is “with fault” then the ECAB should honor the negotiated comprehensive agreement by and between the Claimant, his attorneys, the USPS and the U.S. Attorney which negotiated a determined amount between $5,000 to $10,000 as possibly being owed. The ECAB should order the balance due the Claimant of $9,650.92 to pay that negotiated possible debt ($5K to $10K) to the OFFICE.

If the Claimant is found to be “without fault” and owing nothing to the OFFICE, all monies erroneously withheld by OPM via an apparent erroneous order of OWCP are to be returned to the Claimant, from the time period of 3/10/94 to 11/30/94, totaling an approximate sum of $ 8,259.33 in the event OWCP benefits are not reinstated. Plus the monies ($382.50) prematurely deducted from the Claimant’s annuity checks in 1995. Plus the LWEC reverse decision of the OFFICE by BHR owing the Claimant $9,072.21.

All other issues and arguments hereinafter would be moot pending the return of the Claimant’s approximate sum of $17,714.04 due him.

Also, if the Claimant is found to be “without fault”, but still owing between $5K and $10K he is asking that all documentation, administrative, civil and criminal reflect that he is found “without fault” and that the amount of $5,000 to $10,000 be substituted in place of $221,528.33, and that the proper amount of federal taxes (if applicable) be withheld based on the final findings.

The Claimant is also asking that the Office assist him in obtaining a Presidential Pardon by erasing the criminal charges from his otherwise unblemished record.

FINALLY

In this case, the Office has an opportunity through the ECAB decision to correct its own errors, Weinberger v. Salfi, 422 U.S. 749, 765 (1975). This entire matter regarding all the issues and determinations by the Office between February 28, 1992 to the present should be reversed and vacated.

In addition, the Claimant should receive all back OWCP Benefits due him from 3/23/92 to the present, plus accrued interest. The Claimant is entitled to be compensated for lost wages that he would have otherwise been able to earn, if he were not injured, beginning 4/26/72 through the present and into the future.

(4)

The Office’s January 30, 2002 determination denying the Claimant any modification relative to the Reconsideration filed by the Claimant with the Office on November 13, 2001 in regards to the June 21, 2001 decision of BHR.

The Office ignored the facts and circumstances presented concerning the 1985 overpayment period.

The Office “abused their discretion” in their January 30, 2002 determination by refusing to waive the Claimant’s overpayment by not calculating Equity and Good Conscience accurately or properly.

The Office ignored, (1) necessary prescribed medication vitamin and supplement expenses, (2) hospitalization verification; necessary ongoing testing related to the Claimant’s heart and cancer problems; and the Claimant’s many unpaid medical bills related to same, and (3) income tax expenses (Fed. State, Local). All of which was New Evidence and exculpatory facts submitted into the record.

Most importantly, the Office used the Claimant’s GROSS INCOME and calculates it as NET INCOME to deny the Claimant’s eligibility of Equity and Good Conscience.

Additional receipts and documents were submitted to the Office pertaining to the issues in this case. The Office’s rationale, calculations and reasoning for denying the Claimant’s Reconsideration requests complicates this case even further. The Office “abused their discretion”.

Most importantly, Ms. Nieves “totally ignored”, by not mentioning the fact, that the Claimant submitted documentation that verified the Claimant’s ongoing treatment of Lymphoma Cancer, Cardiomyopathy, Arrhythmia and his Chronic Back Pain. The documentation not only factually verifies the information and evidence submitted, the documentation proves the Claimant’s necessity for taking prescribed medications, vitamins and supplements.

Additionally, Ms Nieves “totally ignored” (when considering Equity & Good Conscience) the Claimant’s medical debt’s which were submitted to her. Not only are the debt’s important to take note of but, also, they verify the necessary ongoing testing resulting in treatment that the Claimant must undergo every year as a result of the Claimant’s Lymphoma Cancer, Cardiomyopathy and Arrhythmia.

Point 4 - the Office claims Ms. Leiton did not indicate she would work things out together with the Claimant before rendering her decision of June 21, 2001:

Rebuttal: The Claimant and BHR, hearing representative Ms. Rachel Leiton, exchanged numerous letters and correspondences. See the following letters from the Claimant to Ms. Leiton that verifies the fact that all matters were to be resolved mutually together. (May 15, 2001, May 25, 2001, July 3, 2001) Also, the verbal communications between the Claimant and Ms. Leiton at the hearing on January 31, 2001 and subsequent phone calls including the transcripts submitted to the Office prove that an arrangement had been discussed between the Claimant and Ms. Leiton to “work things out together.”

See the Claimant’s OWCP-20 (total 5 pages-attached page 16) completed and submitted to Ms. Leiton on February 23, 2001, and see Exhibit 8 submitted to the Office on November 13, 2001 attached to the Claimant’s filing for reconsideration to verify the Claimant’s Gross and Net Income.

Point 8 - Social Security information relative overpayment for the year 1985 is addressed and needs to be argued again

Rebuttal: This information is necessary to view along with the arguments presented in this brief on pages 6, 7, 8, 9, 10 and 13.

Point 10 - medical comments by Ms. Nieves

Rebuttal: A great deal of medical information has been supplied to BHR in recent years as it relates to the Claimant’s life threatening circumstances of Lymphoma Cancer, Cardiomyopathy and Arrhythmia. All of these reports by doctors, diagnoses etc. should be in the Claimant’s file. The Claimant had another heart attack on January 3, 2002 at 11 pm. His implanted heart defibrillator saved his life. That event is not in the record.

Does Ms. Nieves need to be reminded that the USPS put the Claimant on Disability Retirement due to his 1972 back injury?

Cardiomyopathy, Arrhythmia, Cancer and the Claimant’s Chronic Back Condition are not health issues that go away like a cold or the flu. Ms. Neive’s insensitivity is outrageous!

The Claimant relied on the Office for relevant information by asking numerous questions from 1972 up to and including the present time. The Office has been unresponsive to the Claimant’s questions and/or statements. ESPECIALLY THE MANY TIMES THE CLAIMANT STATED: IF ANY OTHER INFORMATION IS NEEDED, PLEASE LET ME KNOW, I WILL BE HAPPY TO HELP YOU.

The Claimant is requesting the ECAB to seriously consider the VERY SPECIAL CIRCUMSTANCES in this case as to why the Claimant pled guilty and to consider the many hasty and erroneous decisions made by the Office.

DATED this 15th day of March 2002,

Resubmitted per ECAB on the 17^th day of April 2002

Respectfully submitted,

PHILLIP A. ZAMPINO, CLAIMANT-APPLICANT

_______________________________________

PHILLIP A. ZAMPINO, CLAIMANT

2415 Bevington St. NW

Canton, Ohio 44709-2221

Voice or Fax: 330-493-6661

CERTIFICATE OF MAILING

I certify that on March 15^th and April 17^th 2002, I served the foregoing by delivering a true and correct copy and duplicate copy via mail to Employees Compensation Appeals Board, 200 Constitution Ave. N.W., Room N-2609, Washington, D.C. 20210.

________________________________________________

PHILLIP A. ZAMPINO, CLAIMANT

File # A09-130317

ECAB Docket Number 2002-1145

What are your opinions and conclusions

after reading the above information?

I am not a rebellious person. I know that many things about our government are very good. But, I also believe that some things in our government were not intended to be as they are today. One thing very specific that I feel must change, and that is we must eliminate situations where it appears that there is a government inside the government.

I hope that you contact your Senators and Congress Representative and let them know how you feel about this issue. Also, if you think it would be a good idea for them to hear your opinions and conclusions about my case, please let them know. It`s to late to change any decisions rendered in my case. But, maybe we can stop individuals in the government from abusing their authority by making them accountable for their actions or lack thereof.

I would like to hear your opinions and conclusions.

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