In the Matter of the Complaint Against:

LEE ROBERTS,
5 Vaughan Court
at
Portsmouth, VA 23701-3828

P.S. Docket No. PF-9

02/4/91

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR POSTAL SERVICE: Stephen E. Alpern, Esq.,
Howard J. Kaufman, Esq., Office of Labor Law,
United States Postal Service,
Washington, DC 20260-1134

APPEARANCE FOR RESPONDENT: None

INITIAL DECISION

On August 24, 1990, the Reviewing Official of the United States Postal Service issued a complaint against Respondent Lee Roberts under the Program Fraud Civil Remedies Act (PFCRA), 31 U.S.C. $Z3801-3812. The complaint, to which were attached the applicable Rules of Practice (39 C.F.R. Part 962), was served on Mr. Roberts on August 28, 1990. Mr. Roberts failed to file a petition for hearing within 30 days thereafter as required by 39 C.F.R. 962.3. On October 10, 1990, the Reviewing Official transmitted the complaint to the Judicial Officer for referral to a Presiding Officer pursuant to 39 C.F.R. 962.4. The Judicial Officer thereafter referred the matter to the undersigned in accordance with that rule which requires the issuance of an initial decision based upon the information contained in the complaint where no request for hearing has been filed within the required time.

FINDINGS OF FACT

1. Respondent Lee Roberts is a retired distribution clerk of the Portsmouth, Virginia Post Office. During 1989, Respondent was the only employee of the Navy Yard Station of the Portsmouth Post Office.

2. On December 28, 1989, Respondent's accountability was audited by the Postal Service. Respondent provided the examining supervisor a Form 1412, Daily Financial Report, showing an "opening balance stamp accountability" of $5,664.67, certified by Mr. Roberts to be a true statement of the accountability assigned to him. This amount was entered by the examiner on line 17 (Opening Balance Stamp Accountability Form 1412) of Form 3294 (Cash and Stamp Stock Count and Summary) on which were entered the counts and values of all cash and stamp denominations found by the examiner. The total cash and stamp stock found by the examiner was $5,665.22. The examiner signed the 3294 as did Mr. Roberts under the printed statement "I agree to the count."

3. On the same date, Mr. Roberts submitted to the Portsmouth Post Office another Form 1412 which contained a stamp accountability figure of $12,057.67, also certified by him to be a true statement.

4. Financial documents examined by the Postal Inspection Service support a stamp accountability closing balance of $12,057.67 for Mr. Roberts on December 28, 1989.

5. Respondent knew or should have known that the Form 3294 signed by him on December 28, 1989, was false in that it carried a false accountability figure from Respondent's Form 1412 for that date.

6. During audits on three previous dates in 1989 (March 1, June 28, and October 14), Respondent also entered a false stamp accountability balance on the Form 1412 furnished to the examiner which was entered on the Form 3294. On each of these dates Respondent also prepared and submitted to the Portsmouth Post Office a Form 1412 showing a substantially greater, and presumably correct, amount of stamp accountability. Respondent knew, or should have known, that the form 3294 which he signed for each of these audits was false in carrying a false opening stamp accountability balance from the forms 1412 shown to the examiner.

7. For the year 1989, Respondent had a shortage in stamp accountability of $6,393.00 representing the difference between his audited stamp stock balance as certified correct by him on December 28 and his actual accountability as reflected in his Form 1412 submitted to the Portsmouth Post Office on that date.

8. There is no information in the complaint from which it may be concluded that the Postal Service made any payment to Respondent on account of the false claims and statements found above.

CONCLUSIONS OF LAW

In submitting four statements on forms 1412 and 3294 setting forth false amounts as to his stamp stock accountability Respondent made four claims as defined in § 3801 of the PFCRA. n1 The Postal Service requests the imposition of a civil penalty of $5000 for each such claim pursuant to § 3802 of the act. The file discloses no mitigating factors and Respondent has not opposed the request.

§ 3801. Definitions

(a) For purposes of this chapter-

* * * * *

(3) "claim" means any request, demand, or submission -

* * * * *

(C) made to an authority which has the effect of decreasing an obligation to pay or account for property, services, or money,

* * * * *

(9) "statement" means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made -

(A) with respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or

* * * * *

(c) For purposes of paragraph (9) of subsection (a) -

(1) each written representation, certification, or affirmation constitutes a separate statement; and

(2) a statement shall be considered made, presented, or submitted to an authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of such authority.

Therefore, I conclude that Respondent is liable to the Postal Service for civil penalties totalling $20,000.

The Postal Service also requests the imposition of an assessment against Respondent in an amount double that of the $6,393.00 shortage found in finding no. 7, above. Section 3802(a)(i) provides for an assessment in lieu of damages sustained because of a false claim except that such an assessment is barred by § 3802(a)(3) if payment has not been made on the claim. Nothing in the language of the PFCRA would support a conclusion that the shortage in Respondent's stamp stock accountability equates with the payment of a claim made by him.

Therefore, since the Postal Service has shown no such payment, it is not entitled to an assessment in lieu of damages.