In the Matter of the Complaint Against: FILOMENA D. WINSLOW, 278 Barham Avenue, Santa Rosa, CA 95407-7053 P.S. Docket No. PF-5 9/13/90 Cohen, James A., Judicial Officer APPEARANCES FOR POSTAL SERVICE: Stephen E. Alpern, Esq.; Howard J. Kaufman, Esq., Office of Labor Law, United States Postal Service, Washington, DC 20260-1130 APPEARANCE FOR RESPONDENT: Filomena D. Winslow, 278 Barham Avenue, Santa Rosa, CA 95407-7053
Respondent has filed an appeal from an Initial Decision of an Administrative Law Judge in which it was concluded that Respondent is liable for an assessment and civil penalty totalling $31,568.78 under the Program Fraud Civil Remedies Act, 31 U.S.C. § 3801 et. seq., for the submission of a false claim for disability compen- sation arising out of her Postal Service employment. The Postal Service opposes the appeal and argues that the Initial Decision should be summarily affirmed.
This proceeding was initiated by a Complaint issued by the United States Postal Service alleging that Respondent had failed to disclose on a Department of Labor Form 1032 that she was self-employed during the time for which she claimed and received disability compensation. The Complaint sought from Respondent an assessment of $26,568.78, or twice the amount of disability compensation she received as the result of the false claim, plus a civil penalty pursuant to 31 U.S.C. § 3802(a)(1)(D).
The Complaint was received by Respondent on December 15, 1989. Respondent requested and was granted an extension until February 7, 1990, to file a petition for hearing. Respondent did not file a petition and on March 12, 1990, the Complaint was referred to an Administrative Law Judge for issuance of an Initial Decision based on the information contained in the Complaint (see 39 C.F.R. § 962.4). On April 6, 1990, the Administrative Law Judge issued an Initial Decision finding that Respondent had submitted a false claim to the Department of Labor and was liable under 31 U.S.C. § 3802(a)(1) for a civil penalty of $5,000, and an assessment of $26,568.78.
On May 7, 1990, Respondent filed a timely Notice of Appeal in which she alleges she was not self-employed and that she did not submit a false claim to the Department of Labor. Respondent attached to her Notice of Appeal documents which were not previously made a part of the record but which she contends support her position. The Postal Service filed a timely response in which it argues that evidence outside the record may not be considered on appeal except on a showing of extraordinary circumstances, which showing has not been made in this case. The Postal Service offers additional evidence to rebut Respondent's contentions, which it asserts should be considered if Respondent is allowed to introduce new evidence with her appeal.
Respondent has not established that the Initial Decision is in error or that she should be permitted to introduce additional evidence at this stage of the proceeding. Respondent requested, and was granted, an extension of the time to file a petition for hearing. The filing of a petition for hearing would have afforded Respondent a full opportunity to present evidence and argument in defense of the allegations of the Complaint. However, Respondent neither filed her petition nor requested a further extension of time until after the Complaint was referred to the Administrative Law Judge and the Initial Decision had been issued. Although Respondent alleges she had difficulty in obtaining legal representation such difficulty does not excuse her failure to file a petition for hearing.
Respondent has not demonstrated that there were reasonable grounds for her failure to file the Petition (39 C.F.R. § 962.21(b)(4)) or that such failure was caused by extraordinary circumstances (39 C.F.R. § 962.21(b)(3)). Accordingly, since the Initial Decision is supported by the record and no reasonable grounds or extraordinary circumstances have been shown which justify consideration of additional evidence, the appeal is denied and the Initial Decision is affirmed.